S\ K BOUGHT WITH THE INCOME FROM THE SAGE ENDOWMENT FUND THE GIFT OF Hem ij *H. &**ge 1891 AxMnJu ZIZ - ro/£h?\ Cornell University Library JK51 .S84 1894 Sources of the Constitution of the Unite 3 1924 030 452 050 olin Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924030452050 SOURCES CONSTITUTION OF THE UNITED STATES jpm. SOURCES 1!i ' i! I ! / CONSTITUTION OF. THE UNITED STATES CONSIDERED IN RELATION TO COLONIAL AND ENGLISH HISTORY BY C. ELLIS STEVENS, LL.D., D.C.L. F.S.A. (EDINBURGH) MACMILLAN AND CO. AND LONDON 1894 All rights reserved ■ ■i.i':-: I'jiO'o , V Vi I? J:;-; VI!', I' T^^t Copyright, 1894, By C. ELLIS STEVENS. Nortoooti $r*0S : J. S. Cushing & Co, — Berwick & Smith. Boston, Mass., U.S.A. In EtSbnte TO THE NATIONS WHICH IN VARYING WAYS BORE RELATION TO SCfje jfounUing of America SPAIN, ITALY, FRANCE, THE NETHERLANDS SWEDEN, GERMANY, AND GREAT BRITAIN THIS WORK IS INSCRIBED PREFACE. AMERICA is sometimes said to be a nation without a past. The remark may mean much or little, according to its application. It is made most frequently in referring to civil institutions. In particular, there has been a tendency to regard the Constitution of the United States as without sources or antecedents, — a new invention in political science. Mr. Gladstone has observed, that " as the British Constitution is the most subtle organism which has pro- ceeded from progressive history, so the American Con- stitution is the most wonderful work ever struck off at a given time by the brain and purpose of man." His words, though not necessarily carrying such meaning, have been often quoted as expressive of this old-time idea, that the American Constitution is wholly new, — that it is, in fact, an original creation of the conven- tion which met in Philadelphia in 1787. 1 What Dr. 1 Professor Morey well expresses this idea : " The organic law under which he [the American] lives is set forth in a written docu- ment. It was put into form at a given time and place. It was fashioned in the heat of discussion by a chosen body of men, whose vii viii PREFACE. Von Hoist aptly calls the "worship of the Constitu- tion " ' has largely stimulated the idea. The philosophy of modern democracy — which, under the influence of the theories of Rousseau, long ignored historical facts — has steadily cultivated it. And there is in it some truth; for not only was this constitution established as a written document by the convention, and in circum- stances quite unique, but it has elements — many of them very important — which are altogether peculiar and char- acteristic. Hardly strange is it, that such traits of singu- larity should attract, as points of differentiation usually do, a somewhat disproportionate attention. But it is beginning to be realized that the Constitution of the United States, though possessing elements of novelty, is not, after all, the new creation that this idea would imply. It is not, properly speaking, the original composition of one body of men, nor the out- come of one definite epoch, — it is more and better than that. It does not stand in historical isolation, free of antecedents. It rests upon very old principles, — principles laboriously worked out by long ages of constitutional struggle. It looks back to the annals of work in its outlines and its details, he is accustomed to think, was solely the product of their creative wisdom. This idea was formerly so prevalent, that the apotheosis of the fathers occupies a large place in American political literature; and this view is not confined to native writers." — Annals of the American Academy of Political and Social Science, April, 1891, p. 530. 1 Von Hoist, Constitutional and Political History of the United States, I. 65. PREFACE. ix the colonies and of the mother-land for its sources and its explanation. And it was rendered possible, and made what it is, by the political development of many generations of men. When the preparation of the present work was undertaken, some years ago, there existed no popular recognition of these facts. The tendency was still to regard this constitution as solely the creation of the Philadelphia Convention; and the scant allusions to constitutional genesis, scattered in American literature, had seemingly left no impression on the general mind. While, however, the work has been in progress, Amer- ican universities have gradually taken up the study of constitutional sources, occasional articles touching phases of the subject have been published in periodicals, and explicit references to it have found their way into current books, so that public opinion has been ripening. 1 The path now seems opened for a comprehensive investiga- tion. Yet, down to the present, no volume devoted to the theme has appeared. The American Constitution is, strictly speaking, the document which goes by that name. The present work treats of the document, and of the sources of its con- tents, — avoiding all side issues. Whatever influence 1 Bryce, American Commonwealth, has some references. Hannis Taylor, Origin and Groiath of the English Constitution, gives in the Introduction » brief but lucid outline. Douglas Campbell, Puritan in Holland, England, and America, treats of American institutions in general, but says little of the Constitution itself, and that little is practically limited to the question of Dutch antecedents. x PREFACE. various European races may have exerted upon Ameri- can institutions in general, as existing to-day, 1 the ante- cedents of this great national document are traceable so directly and so almost exclusively through colonial and English channels, that no apology is necessary for taking such channels as the true line of investigation. The aim has been to place in the hands of scholars and the gen- eral public, a clear and concise survey of the salient features of such constitutional evolution. There may still be persons in America who are un- prepared to regard with favour such a study, and who look unwillingly to England or other countries for the origin of institutions they have long been accustomed to consider characteristically modern and American. But surely Americanism can never be more truly American, than when it welcomes, not merely such isolated frag- ments of fact as differentiate the United States from other nationalities, but every fact, whatever it be, that has to do with the nation ; and among these, a most important fact is that of progression from the Anglo- Teutonic past. In reality, the light that comes from historical comparison will be found to give new and heightened colour to the national institutions, and to bring out more clearly than anything else could do, their true meaning and value. Englishmen and dwellers on the Continent, who often appear to believe that the example of America leads toward a limitless democratic advance, may find in the 1 Recent claims have been made for Dutch, Scotch-Irish, etc. PREFACE. xi American Constitution, if they will, a balancing element of conservatism that should not be lost to sight. The American loves liberty, but liberty regulated by prece- dent and law. In an age when democratic and socialistic theories are threatening the foundations of the political and social fabric of the civilized world, it can scarcely be unprofitable for earnest thinkers to pause and consider, that the great republic possesses in its method of govern- ment the result, not merely of a philosophy, but of an historical upgrowth. And it is proper to observe, that there are Americans who regard with dismay the tendency of those in England who seem in haste to modify or destroy old English institutions, appearing to believe that America sets the example of such destructiveness, and that such a road is the way of progress. England would do well to realize that the American institutions which have proved the most successful have been, very often at least, the working out of ancient English principles of free government. If the case of America is to count for anything, it may count, certainly in some respects, on the side of a careful handling of those old principles. There is many a true-hearted and loyal American who would deplore the spectacle of Englishmen breaking with their own great past. The author would be justly deemed ungrateful, if he failed to express sincere appreciation of the important aid given him by distinguished legal and historical scholars in Europe and America. Special mention xii PREFACE. should be made of the earnest help and interest ac- corded by the late Sir Henry Maine. Thanks are also due to many kind friends, — among them the Rev. Henry B. Ensworth, who has supplied a number of valu- able works ; and a lady who has aided materially in the task of final revision for the press. Despite carefulness, the author is fully conscious that he has not improbably fallen into mistakes, — for all which he begs a generous indulgence. He has tried to see the facts clearly, fairly, fearlessly, — and to let the facts tell their tale. January i, 1894. CONTENTS. Chapter I. The Anglo-American Colonies II. The Making of the American Constitution III. Legislative Organism IV. Legislative Powers V. The English Executive . VI. The American Executive VII. The Judiciary . VIII. The Bill of Rights Page i 35 59 86 117 '45 178 207 APPENDIX. The Constitution of the United States . 243 INDEX .... 263 CHAPTER I. THE ANGLO-AMERICAN COLONIES. IT has been a prevalent error in political writings to overestimate intelligence, and underestimate the power of what, for want of a better term, may be called instinct. This error appears notably in the writ- ings of Grotius, Hobbes, Spinoza, Puffendorf, Locke, Rousseau, — in fact, in all writings where the origin of government is explained by the hypothesis, now ex- ploded, of an original social contract, based upon the element of intelligent selection. A safer course is adopted by some recent writers, who may be said to incline to the view believed to have been first advanced by Aristotle, which regards government as a result of natural social growth. 1 1 Aristotle says : " It is evident that a state is one of the works of nature, and that man is naturally a political animal, and that who- soever is naturally and not accidentally unfit for society must be either inferior or superior to man." — Welford's translation of Aris- totle's Politics and Economics, 6. Mr. Hannis Taylor gives modern expression to this old thought : " The cityless man (SiroXis) — the natural man of Hobbes and Rousseau — must be more or less than man, — either superhuman or a monster." — Origin and Growth of the English Constitution, 5. " He is the unit," Pollock remarks, I 2 SOURCES OF THE CONSTITUTION. chap. The later theory has been aptly stated thus : " The long continuance of a people under any given political order engenders a habit and action, which ripens into a political instinct and becomes powerful in determining the form of institutions and the direction of political progress. 1 In the early stages of political life, changes " out of whom, if there be only enough of them, theorists of the Social Contract school undertake to build up the state. This is an enterprise at which Aristotle would have stared and gasped." — History of the Science of Politics, 9. "The influence of this con- tract theory on political thought lingers even to this day, though in a constantly diminishing degree. At present it may be considered as having generally given place to the view first advanced by Aris- totle." — Crane and Moses, Politics, 68. 1 " Intelligence," substantially says Professor Joseph Le Conte, " works by experience, and is wholly dependent on individual expe- rience for the wisdom of its actions; while instinct, on the other hand, is wholly independent of individual experience. If we regard instinct in the light of intelligence, then it is not individual intelligence, but cosmic intelligence, or the laws of nature working through inherited brain structure to produce wise results. Intelli- gence belongs to the individual, and is therefore variable, that is, different in different individuals, and also improvable in the life of the individual by experience. Instinct belongs to the species, and is therefore the same in all individuals, and unimprovable with age and experience. ... In a word, intelligent conduct is self-deter- mined and becomes wise by individual experience. Instinctive conduct is predetermined in wisdom by brain structure. The for- mer is free; the latter is, to a large extent, automatic." — Popular Science Monthly, October, 1875. " As to tne origin of instinct, it can hardly be said that any theory has as yet gained universal assent, but no hypothesis appears more worthy of acceptance than that which regards it as habit grown to be hereditary. An act fre- quently performed in the consciousness of a specific purpose may continue to be performed, through the determinative force of struc- I. THE ANGLO-AMERICAN COLONIES. 3 are less frequent than in the later stages, and opportunity is thereby offered for the ideas of social organization peculiar to primitive times to impress themselves upon the mind, and in the course of centuries of political monotony to ripen into a firmly fixed instinct. Thus the political instincts of a race have their origin in a pre- historic age, in an age when generation after generation passes away, leaving no record of change in social forms, or of the acquisition of new ideas. And it is this political instinct that must be taken account of, if we would fully understand political progress ; it is in its force and persistence that we discern the main cause of that tendency displayed in kindred nations to pre- serve in their governments the essential features of the primitive political institutions of the race to which they belong." 1 Whether such philosophy be sound or not, attention is being increasingly drawn at the present day to the ascertained fact of racial influence on political develop- ment, — the essential and continuous potency of racial institutions in the life of nations. Historical writers have directed observation to the actual rise of modern governmental systems from ancient originals, and sci- entific writers have applied the theory of heredity to ture, after the consciousness of the purpose of the act has been lost. When this peculiarity of structure or the mental bias caused by the frequent and continued exercise of the mind in a given direction has become hereditary, the habit has grown into an instinct." — Crane and Moses, Politics, 69. 1 Ibid. 70, 4 SOURCES OF THE CONSTITUTION. chap. politics, and have asserted the well-nigh automatic play of hereditary traits upon national career and destiny. Quite aside from possible extremes of speculation, few persons will nowadays question the reality of this racial force. In examining into the sources of the Constitution of the United States, it will be found necessary to bear in mind from the outset that the nation was founded by men, the great majority of whom were of the English branch of the Teutonic race. 1 The colonists were, for 1 Mr. Douglas Campbell (Puritan in Holland, England, and America'), in his effort to make out a Dutch origin for American institutions, has fallen into the mistake of underestimating English influence. One of his main contentions is that the American people are not of English race; and he bases this assumption upon the fact that there were resident along with the English in the colonies Welshmen, Scotchmen, Irishmen, Scotch-Irishmen, Dutch, Ger- mans, Frenchmen and Swedes. But, for the purposes of the pres- ent inquiry, it is sufficient to remember : — 1. The above statement is strictly accurate: "The great major- ity" of the settlers were of "the English branch of the Teutonic race." Mr. Campbell admits that the English majority was over- whelming. 2. The Scotch, Welsh, Irish, and Scotch-Irish had lived under British institutions before journeying to America. They had passed through an English constitutional experience as really as had their English fellow-countrymen. 3. Those of other races resident in the colonies had personal contact for several generations with English government in its imperial and colonial forms. 4. All colonists alike were British subjects; and English admin- istration dominated all, as completely as did the English language. 5. The Constitution of the United States as a legal document is traceable not to race influences in any vague sense, but to race I. THE ANGLO-AMERICAN COLONIES. 5 the most part, of one blood. Their language and social usages were those of Great Britain. They took with them to America not merely memories of political insti- tutions, but, to a considerable extent, the English law itself. And they continued for a century or more, despite changing conditions, in political union with England as members of one empire. 1 influences as worked out in the form of laws. And those laws were English. In simple truth, the presence in America, during colonial days, of the representatives of other races than the English has left scarcely a trace in the national Constitution. This is so, notwith- standing the fact that these races have contributed in several ways to the formation of the national spirit of the Americans. Thus an acknowledgment is due to the Dutch — themselves Teutonic — who did much to promote the love of freedom. And Mr. Campbell, in his second volume, shows that the influence of the Scotch-Irish was in the same direction. The free school, the use of a written ballot, certain features of the land laws and of the township system, which Mr. Campbell mentions, are doubtless traceable, in part at least, to Dutch sources; and though not included in the Constitution, have exercised an influence in moulding the American nation. It would be easy to exaggerate this influence, especially if English govern- ment in America, which forms the great fact of early American his- tory, should be left out of the account. In opening for investiga- tion a most interesting question — the question of Dutch influences — Mr. Campbell has seemingly erred on this side. His very able treatment of his theme renders this bias the more regrettable. 1 " The people were proud to call themselves ' Englishmen away from home,' and they were prompt to claim all the rights and liber- ties of English subjects." — Landon, Constitutional History and Gov- ernment of the United States, 20. Referring to the persistence of the English traits in the race, even among Americans of our own day, Professor Hosmer says : " Can it be said that the stock is still funda- 6 SOURCES OF THE CONSTITUTION. chap. That they possessed a common nationality in, and were thus subject to England is in itself an important fact ; for a strong nation never fails to make an impress upon the minds of its citizens or subjects, and it edu- mentally English, however large may have been the inpouring into its veins of foreign blood? When among our kin beyond sea it was urged, not long since, that in the people of England the Anglo- Saxon had been superseded; that Celt, Frank, Scandinavian, Hol- lander, and Huguenot — the multitude of invaders and immigrants through a thousand years — had reduced the primitive element to insignificance, it was well replied by Mr. Freeman : ' In a nation there commonly is a certain element which is more than an ele- ment, something which is its real kernel, its real essence; some- thing which attracts and absorbs all other elements, so that other elements are not co-ordinate elements, but mere infusions into a whole which is already in being. ... If, after adopting so many ... we remain Englishmen, none the less surely a new wit- ness is brought to the strength of the English life within us, — a life which can thus do the work of the alchemist, and change every foreign element into its own English being.' [Four Oxford Lec- tures, 1887, p. 80.] A similar statement might be made as regards America. . . . The stranger, indeed, has been with us from the beginning: Frenchman and Spaniard preceded us; Celt, Swede, Dutchman, and German came with us in the earliest ships. The overflow of Europe . . . has poured in upon us in an inundation; yet the English stock remains, — the element which is more than an element, the real kernel, the real essence; something that attracts and absorbs all other elements, so that other elements are not co-ordinate, but mere infusions into a whole which is already in being." — Hosmer, Anglo-Saxon Freedom, 312, 313. He gives evidence of this, and quotes the testimony of the late Professor Richard A. Proctor : " I have had better opportunities than most men of comparing the two nations; and I profess I find the differ- ence between them even less than I should have expected from the difference in the conditions under which the two nations have sub- I. THE ANGLO-AMERICAN COLONIES. 7 cates and powerfully moulds their political opinions. Nationality creates characteristic traits of thought and tendency. And, possibly for this reason, the political development of colonies has been usually, in all the sisted during the last few generations." Sir Edwin Arnold, com- menting upon the same fact, says of America : " I have found myself everywhere in a transatlantic England. I do not say that in any foolish idea that to be ' quite English ' is a point of perfection. . . . Half an American as I am, by marriage and by sympathies, I must confess that it has been wholly delightful to observe this unmistaka- ble and minute identification of the races." Mr. Bryce points out the process of foreign absorption, by which, though immigrants usually retain their foreign traits in the first generation, the rising generation rapidly loses its old nationality. "The younger sort," he says truthfully, "when they have learned English ; when, working among Americans, they have imbibed the sentiments and assimilated the ideas of the country, are henceforth scarcely to be distinguished from the native population. They are more American than the Americans in their desire to put on the character of their new country." — American Commonvifealth, U. 328. Professor Hosmer comments : " The Anglo-Saxon stock has been made rich and strong by a score of crossings with the most vigorous and intellec- tual of modern races; but it remains, nevertheless, Anglo-Saxon. In 1886, at the great Colonial Exhibition in London, what especially struck the American visitor was the identity with his own civiliza- tion of the civilization represented in the products set forth; and the similarity to himself of the English-speaking men who had gathered there, though they came from the farthest corners of the world. Such clothing we wear . . . with such appliances we, too, mine, work the soil, sail the sea, . . . and teach the young idea how to shoot; in the paintings of towns at the antipodes, which some- times were hung on the walls, the streets looked like those of any American town; the frontiersman's hut in the remote clearing, as the model showed it, was a reproduction of the log cabin of Dakota or Kansas. If the American, fell into talk with a group pausing in 8 SOURCES OF THE CONSTITUTION. chap. history of the world, through forms similar to those which dominate the parent people. When in the early part of the seventeenth century English colonization of America began, England had an aisle before some attractive object, though one might be from New Zealand, another from the Faulkland Islands, a third from Natal, and a fourth from Athabasca, a close spiritual and intel- lectual relationship was at once developed. All had read, to a large extent, the same books, been trained in the same religious faith, disciplined and made strongly virile by that priceless polity, so free and yet so carefully ordered, which had been inherited from Anglo-Saxon ancestors, or thoroughly assimilated through contact with Englishmen. ' Should you know,' said the American, ' that my home is in the valley of the Mississippi ? ' ' By no means,' was the reply; 'you seem to me like my neighbours in Aukland.' And yet it was two hundred and fifty years since the ancestor of the American had left his home in Kent to go to the New World, and the New Zealander had never left his island until he took ship a month before for London. ' You seem like my neighbours,' also could say the man from Cape To'wn, from Fort Garry, from Puget Sound, from the gold fields of Ballarat. ' You might all come from this or that English county,' said a Londoner, who had joined the group; 'you are no more diverse from one another, or from us, than the man of Yorkshire from the man of Dorset; the Cumber- land shepherd from the Leicestershire farmer. . . . Substantially, they were identical with one another — identical too with the American — all with blood enriched by infusion, . . . but not changed in frame or speech or soul from the champions who, under Alfred, or Earl Simon, or Cromwell, or Washington, or Lincoln, fought to sustain Anglo-Saxon freedom." — Anglo-Saxon Freedom, 318-320. So speaks a writer of our time, of the race as it is to-day in America, notwithstanding the changes of two centuries, and those other changes wrought by modern immigration. The race during the American colonial period — which is the sole point that the present volume has to consider — was thoroughly and intensely English. I. THE ANGLO-AMERICAN COLONIES. 9 long been a fully developed, homogeneous nation. The Englishmen of the reigns of Elizabeth and James I. possessed a certain stock of political ideas in common. There was agreement in the conception of certain ele- ments of government ; and the principal of these ele- ments were: (i) a single executive; (2) a legislative body consisting of two houses, the upper conservative, and the lower representative of the people at large ; (3) a distinctive judiciary. There was also agreement in (4) a number of general principles — such as trial by jury, the essential relation of representation to taxation, and the like — derived from the old struggle of the nation for its freedom. It was natural that colonies, set off from the home land as these were, should manifest a tendency to develop such governmental institutions. And this was the actual course of their development. The American colonies were settled mainly by English- men, and were subject to Great Britain. And their institutions were mainly of an English nature, except as modified by the provisions of the royal charters under which their governments were organized, and by the circumstances that attended transplanting to a new soil. 1 1 Professor William C. Morey (Annals of American Academy of Political and Social Science, April, 1891) lays emphasis upon the fact that the charters granted by the sovereigns for the colonies were really charters of commercial corporations. The further fact that the governmental provisions of these charters closely resem- bled the outlines of the English government, greatly aided the colonists in establishing English institutions. The colonists, how- ever, did not confine themselves to charter provisions. What 10 SOURCES OF THE CONSTITUTION. chap. This essential political fact is made forcibly clear by any examination of colonial origin and progress. Such examination, at least in brief, is called for, as introducing the present theme. In entering upon it, we will first consider the government of each colony separately, and then the relation of the colonies collectively to the home administration. The earliest permanent English settlement, within the present territory of the United States, was in Virginia, under a charter granted by James I. in 1606. 1 This charter, which was followed by others in 1609 and 161 2, provided for a company having a council resident in England with power to govern under regulations and instructions from the king. As the colonists began to increase, a demand was set up for a voice in the making of the laws. "They grew restless and impatient," Judge Story expresses it, " for the privileges enjoyed under the these lacked they supplemented by a direct copying from British originals, until there resulted, by action of the people themselves, a close assimilation of each colonial government to the model of the government of the mother-land. "The constitutional development of the American colonies began very early. The colonial system hampered them but slightly, and that chiefly in regard to trade. Assemblies were not instituted, but grew up of themselves, because it was of the nature of Englishmen to assemble." — Seeley, Expan- sion of England, 67. As Hutchinson expresses it, "This year (1619) a House of Burgesses broke out in Virginia." See Robinson, Pub- lications of the American Academy of Political and Social Science, No. 9, p. 207. 1 This charter is given in Poore's Charters and Constitutions, Part II., p. 1888. Also it may be found in Stith, and in Hazard's Historical Collections. I. THE ANGLO-AMERICAN COLONIES. 11 government of their native country." 1 And to meet this uneasiness, Governor Yeardly called together repre- sentatives in a general assembly at Jamestown in 1619, and allowed them legislative powers. 2 Story adds : " Thus was formed and established the first representa- tive legislature that ever sat in America. And this example of a domestic parliament to regulate all the internal concerns of the country was never lost sight of, but was ever afterwards cherished throughout America as the dearest birthright of freemen." 3 So acceptable was it to the people, and so essential to the real prosperity of the colony, that the council in England issued an ordi- nance in 162 1, which gave it a complete and permanent sanction. 4 In imitation of the constitution of the British 1 Commentaries on the Constitution of the United States, I. 21, § 46. 2 Robertson's America, B. 9. " The first representative legisla- tive assembly ever held in America was convened in the chancel of the [Episcopal] church at James* City or Jamestown, and was com- posed of twenty-two burgesses from the eleven several towns, plan- tations, and hundreds styled Burroughs." — Narrative and Critical History, III. 143. In 1874 the manuscript account of the trans- actions of this assembly, from the State Paper Office, London, was published as a State Senate Document; Colonial Records of Vir- ginia. In 1857 it was published in the Collections of the New York Historical Society. 8 Commentaries on the Constitution of the United States, I. 21, §46- 4 Referring to the Jamestown assembly of 1619, Professor Thorp remarks : " Two years later, on the 24th of July, the council of the company in England approved the course of the assembly by pass- ing an ordinance establishing a written constitution for Virginia. 12 SOURCES OF THE CONSTITUTION. chap. Parliament, the legislative power was lodged partly in the governor, who held the place of the sovereign ; partly in a council of state named by the company, and partly in an assembly composed of representatives chosen by the people. Each branch of the legislature might decide by a majority of votes, and a negative was reserved for the governor. But no law was to be in force, though ap- proved by all three parts of the legislature, until it had been ratified by a general court of the company, and returned to the colony under seal of the court. The ordinance further required the general assembly and the council of state " to initiate and follow the policy of the forms of the laws, customs, and manner of trial, and the administration of justice used in the realm of Eng- land, as near as may be." Thus the government of Virginia, even at that early date, included a personal executive in the governor, representing the sovereign ; two houses of legislature, the lower one elected by the people ; and a system of justice. By the annulling of the charter and the dissolution of the company in 1624, the colony came under the rule of the king, exercised through a governor and twelve councillors of his own appointment ; and it remained a royal province down to the American Revolution. For This earliest written constitution for an American commonwealth was modelled after the unwritten constitution of England, and it is the historical foundation of all later constitutions of government in this country." — Story of the Constitution, 26. See Henning, Stat., in; Stith's Virginia, App. No. 4, 321. The boasted Connecti- cut constitution was of later date. I, THE ANGLO-AMERICAN COLONIES. 13 many years following this change, there was no second house of legislature ; and during the greater part of the reign of Charles I., the sovereign who sought to govern without a Parliament at home, succeeded in governing by his own will in the colony. But after complaints, and some open resistance, Charles sent over Sir William Berkeley, with instructions to summon elected repre- sentatives, who should form, with the governor and coun- cil, an assembly clothed with full legislative powers. He also set up courts of justice. And thus for the second time by popular demand, Virginia obtained a govern- ment embracing the essential points of that of the mother land. English common law underlay the colo- nial jurisprudence. Trial by jury, taxation by the repre- sentatives of the people in assembly, and other charac- teristic English principles, were incorporated into custom and regulation. Such was Virginia before she became a State of the American union, and her State constitution was essentially an outgrowth of this colonial adaptation of English usage. To the " Governor and Company of Massachusetts Bay in New England" Charles I. granted a charter in 1628, 1 intending that the corporation should administer its affairs from England. Provision was made for a governor, deputy governor, and eighteen assistants, to serve as a council, with permission to freemen of the company to attend and take part in certain general meetings annually. Laws for the benefit of the distant colony were allowed 1 Poore's Charters, I. 932; Massachusetts Records, I. 3. 14 SOURCES OF THE CONSTITUTION. chap. to be mai.de, " so as such laws and ordinances be not con- trary or repugnant to the laws and statutes of this our realm of England." But in the year following the grant of the charter, by a bold stroke on the part of the com- pany the document was transferred to Massachusetts ; and it became thenceforth, until its abrogation under James II., the basis of government by the colonists within the colony itself. 1 For a few succeeding years, the admin- istration was conducted by a General Court composed of the governor and assistants, with the assembling of such freemen as were capable of attending in person. But in 1634 the towns sent elected delegates to represent them, though no provision for such a course was to be found in the charter ; and ten years later, the governor and assist- ants on one hand, and the representatives on the other, definitely separated into two houses of legislature. Thus in Massachusetts, as in Virginia, the outlines of English government were worked out in local usage by move- ment of the colonists themselves. 1 " What was originally organized as an English trading company thus became an American colony, with its constitution and govern- ment unchanged. The charter of 1628 remained the colonial con- stitution of Massachusetts until 1 69 J, when it was superseded by a new royal charter, which, however, confirmed the previous frame of government in its essential points, save that the governor was now appointed by the crown. It should be noticed that by this charter of 1691 the colony of pilgrims at Plymouth, Massachusetts, who had developed an independent government of their own, without any royal sanction, was united to Massachusetts Bay, and became in- corporated into the same political organization.'' — Annals of Amer- ican Academy of Political and Social Science, April, 1891, p, 550. I. THE ANGLO-AMERICAN COLONIES. 15 In 1646 the General Court of Massachusetts sent an address to the Long Parliament, declaring : " For our government itself, it is framed according to our charter, and the fundamental and common laws of England, and conceived according to the same — taking the words of eternal truth and righteousness along with them as that rule by which all kingdoms and jurisdictions must render account of every act and administration in the last day — with as bare allowance of the disproportion between such an ancient populous, wealthy kingdom, and so poor an infant, thin colony as common reason can afford." They then endeavoured to demonstrate the accuracy of their statement by setting forth in parallel columns the fundamental laws of England from Magna Charta, and their own laws. 1 For New Hampshire, the king issued a commission in 1679, erecting a government with the executive power vested in a president. The president was appointed by the sovereign, and was aided by a council, also of royal appointment, which, together with popularly elected representatives or burgesses, composed the legislature. The council also possessed judicial powers ; and it was required in the charter that " the form of proceedings in such cases, and the judgment thereon to be given, be as consonant and agreeable to the laws and statutes of this our realm of England, as the present state and condition of our subjects inhabiting within the limits 1 Palfrey, History of New England, II. 174; Hutchinson, His- tory, I. 145, 146. 16 SOURCES OF THE CONSTITUTION. chap. aforesaid, and the circumstances of the place will ad- mit." 1 The colonies of Connecticut 2 and New Haven, with- out awaiting a charter, established governments of their 1 New Hampshire Provincial Laws, ed. 1 771, pp. I, 3. 2 "In 1639 a written instrument was signed by which the three towns of Windsor, Wethersfield, and Hartford became associated as one body politic. Citizens of Connecticut, with very just pride point to this instrument as the first American written constitution, for the compact on the Mayflower was merely an agreement to found a government, leaving its character to be determined in the future. But in view of the fact, that the Netherland republic had for about half a century been living under the ' Union of Utrecht,' which was a written constitution pure and simple, writers are hardly warranted in calling this the first instrument of the kind known to history." — Campbell, Puritan in Holland, Engla7id, and America, II. 417. "This enactment of the Connecticut colonists has been extolled as ' the first example in history of a written constitution, — an organic law constituting a government and defining its powers.' " — Bacon, Constitutional History of Connecticut, 5, 6. Mr. Bryce calls it the oldest truly political constitution in America. — Ameri- can Commonwealth, I. 414, note. "It was, no doubt, the first written constitution which was enacted by the independent act of the people. The form of government, however, which it con- stituted was simply a reproduction of that of the Massachusetts Bay Company, sanctioned by the charter of 1628. Whether the independent authority exercised by the Connecticut colonists was alone sufficient to constitute a legal government was, to them at least, a matter of question. Aware of the doubtful nature of their title to exercise sovereignty, the colonists appealed to the king, and in 1662 received a royal charter, which erected the colony into a corporate company, with powers and privileges similar to those already given to the Massachusetts Bay Company. The phrase- ology of this charter throughout is almost precisely the same as that employed in the Massachusetts charter of 1628." — Morey, Annals I. THE ANGLO-AMERICAN COLONIES. 17 own, consisting of governor, assistants, and deputies com- posing a general court. The two colonies were merged by the charter granted to Connecticut at the restoration of Charles II., 1662 ; which document — escaping seizure at the hands of Sir Edmund Andros in the reign of the last Stuart king, by being secreted in an oak — remained in force until so late as 18 18, when the State constitution succeeded to it and was modelled upon it. A bill of rights similar to that of Massachusetts was early passed by the colony, and trial by jury was, with other English customs, established in common practice. Rhode Island, also a union of two previously existing colonies, received from Charles II., in 1663, after a suc- cession of political vicissitudes, a charter constituting the usual elements of government. And the colony itself set forth the customary bill of rights. For about thirty years afterwards, the general assembly met as a single cham- ber ; but from 1 696, the governor and assistants acted as an upper house, and the deputies as a lower house. 1 The original charter remained until 1842 the funda- mental law of the State, and was not until then super- seded by a State constitution. Maryland was granted by a patent of Charles I., in 1632, to Cecilius Calvert, Lord Baltimore, and his heirs, in full and absolute property, saving only the rights of of American Academy of Political and Social Science, April, 1891, p. 551. As a matter of fact, the royal charters were the first American written constitutions. 1 Rhode Island Colony Laws (1744), 24. 18 SOURCES OF THE CONSTITUTION. chap. the crown. 1 The patent vested in the proprietor full executive power, and the privilege of making laws, with the co-operation of the colonists. All freemen were permitted to take part in legislation; and the first gatherings for the purpose were held in 1634 and 1635. But in 1639, in consequence of the increase of popu- lation, deputies were elected to represent the freemen. Eventually, as in other colonies, the assembly was divided into two houses. 2 And among the earliest laws adopted was one declaring "that the inhabitants shall have all their rights and liberties according to the great charter of England." 3 Originally colonized by the Dutch, New York and New Jersey did not pass into English hands until 1664. Singularly, however, the Dutch occupation left very 1 " The Province was made a county palatine, and the Proprietary- was invested with all the royal rights, privileges, and prerogatives which had ever been enjoyed by any Bishop of Durham within his county palatine."- — Narrative and Critical History, III. 520. 2 " The details of political organization were in a great measure confided to the discretion of the proprietor, whose original concep- tion of a constitution consisted of a governor, council, and primary assembly — a veritable old English gemote • — • in which every free- man had the right to represent himself and to vote. Gradually, as the primary plan grew inconvenient, it was supplanted by a repre- sentative system, and in 1647 the governing body was divided into two chambers : the lower consisting of an elective house of bur- gesses; the upper, of the councillors and of those specially sum- moned by the proprietor." — Taylor, Origin and Growth of the English Constitution, 24. 3 Bacon, Laws of Maryland, t. 2, 1638; c. 1, 1650. Assembly Proceedings of Maryland, 1637 to 1658, p. 129. I. THE ANGLO-AMERICAN COLONIES. 19 little permanent result of a constitutional character. 1 The territory was granted to the Duke of York by two charters of Charles II., one given before and the other after the final acknowledgment of the conquest on the part of the government of the Netherlands. 2 1 " The Dutch did not trouble themselves much about forms of government." — Landon, Constitutional History of the United States, 23- 2 In consequence of this a large proportion of the Dutch in- habitants left the colony and returned to Europe. Since Mr. Douglas Campbell made his assertion of Dutch as against English influence upon the institutions of the United States, it has become customary in New York and some other localities to repeat and amplify his allegations. When this is done by Americans of Dutch ancestry, no one need wonder; but when the utterances proceed from other sources, and are marked by a rhe- torical rather than historical tone, they are to be regarded differ- ently. The lines of argument used by such writers commonly repeat themselves, (i) It is claimed that America was influenced by Holland, because Holland exerted an influence over England. But it is evident that this particular line of influence, whatever it may have been, reached America through England. Little is said by these one-sided writers of any influence exerted by England over Holland. (2) It is claimed that because the Pilgrims and some of the early Puritans passed through Holland on their way to America, they were controllingly influenced by the Dutch. But there is practically an ignoring of the fact that these men had spent the greater part of their lives in England, and were by birth and* blood Englishmen. (3) It is claimed that by means of commercial transactions, Holland and New Amsterdam influenced the social life of the colonists. But the long and bitter hostility of the colo- nists toward the Dutch is unmentioned. And the fact is left out of sight, that the main contact and commerce of the colonies down to the very last, was with England. It is not worth while to follow these writers further in such irresponsible toying with sober history. 20 SOURCES OF THE CONSTITUTION. chap. Under the second charter, the Duke ruled New York until his own accession to the crown as James II. No general assembly was summoned for eight years, but pop- ular clamour became so great, that in 1682 the governor was authorized to establish one, with the right of making laws subject to approval by the proprietor. 1 Six years later the colony declared for William and Mary; and thereafter, although without charter, it was governed as a royal province by crown-appointed governors, and with regular sessions of the legislature. The laws indi- cate closer adherence to the policy of England than do those of any other colony, and the British common law was the basis of jurisprudence. 2 Undoubtedly nations do affect one another through example, insti- tutions, literature, and commerce. England and Holland have thus exerted an influence upon each other. So also have England and France. So have America and European peoples other than the Dutch. Dutch influence upon the United States has doubtless been real in several ways. But nothing can be gained by the effort of enthusiasts to exaggerate that influence, or to assert for it a place comparable with the influence of England. 1 This assembly " was formally called by the governor, as the duke's representative, in answer to a popular petition for a govern- ment like that of the New England colonies. These enactments, under the name of a ' charter of liberty,' vested the government in the hands of a governor, council, and representative assembly, with powers similar to those possessed by the corresponding branches in New England; and these enactments were approved, not only by the governor and the duke, but also by the king." — Annals of Ameri- can Academy of Political and Social Science, April, 1891, p. 553. 2 As New York was originally settled by the Dutch, the complete supremacy of English constitutional law and usage is the more remarkable. Some Dutch usages linger (see Campbell, Puritan in I. THE ANGLO-AMERICAN COLONIES. 21 New Jersey was granted by the Duke of York, in 1664, to Lord Berkeley and Sir George Carteret, on the same terms as he himself held New York; and these pro- prietors in 1664-65 made to the people a concession Holland, England, and America) ; but their number seems to be relatively small, — so small that Dutch influence was until recently almost forgotten. When the first charter was granted to the Duke of York, " no laws contrary to those of England were allowed." — Story, Commentaries on the Constitution, I. 75, § 112. The supremacy of the Englishmen, with their characteristic claims of liberty, is evidenced by the exclamation of the governor to the legis- lature in 1697 : " There are none of you but what are big with the privileges of Englishmen and Magna Charta." — Landon, Constitu- tional History of the United States, 24. Among the earliest acts was one declaring the right to enjoy the liberties and privileges of Englishmen by Magna Charta. — Smith, New York, 127, 75, 76; Acts of 1 69 1. Story remarks : " In examining the subsequent legis- lation of the province, there do not appear to be any very striking deviations from the laws of England; and the common law, beyond all question, was the basis of its jurisprudence. . . . Perhaps New York was more close in adoption of the policy and legislation of the parent country before the Revolution, than any other colony." — Commentaries on the Constitution, I. 77, 78, § 114. The facts are well summarized by Crane and Moses : " New York we find owed its first settlement, like many other colonies, to a speculative corpo- ration. The Dutch West India Company, under its charter from the government of the Netherlands, undertook to colonize the new territory in the neighbourhood of the Hudson River. It is not neces- sary to our purpose to examine very closely the history of this com- mercial venture, because the Dutch regime made little or no impression politically, however great its impression socially, upon the future State. . . . The elements of local self-government then existing in Holland were not transplanted. It is from the capture by the English, in 1664, that the political life of New York dates." — Politics, 117. 22 SOURCES OF THE CONSTITUTION. chap. of the customary forms of government. After political vicissitudes, the proprietary control terminated in the reign of Queen Anne. But though the colony had no charter, and was ruled under royal commissions, the local model of government remained practically un- changed. 1 The settlement of Pennsylvania and Delaware by the Dutch and Swedes was, as in the case of the original settlement of New York, without much political result. William Penn obtained a patent as proprietor in 163 1, and purchased in the following year the rights of the Duke of York over the Three Lower Counties of Dela- ware. The patent empowered Penn and his successors to make laws and raise taxes, with the consent of the freemen of the country, the king reserving right of veto. The proprietor was permitted to appoint judicial and other officials, to grant pardons and reprieves, to erect courts, to establish corporations, manors, and ports, and to execute locally other functions of the crown. 2 1 " In all these changes of authority, the form of government established . . . retained the general form which already prevailed in New England, which type was more consciously followed than that of the south, although there was no essential difference between the political forms of the two sections." — Annals of American Academy, April, 1891, p. 554. 2 It has been remarked, as a strange omission in this charter, that no provision exists to the effect that the inhabitants and their children shall be deemed British subjects, and entitled to all the liberties and immunities thereof, such a clause being found in every other char- ter. Chalmers has observed that the clause was unnecessary, as allegiance to the crown was reserved; and the common law thence I. THE ANGLO-AMERICAN COLONIES. 23 After some variation in the system of government, a final charter was established in 1701, providing for a governor, council of state, and assembly of deputies. 1 Delaware sent representatives until accorded a legislature of her own in 1 703. Carolina was granted to Lord Clarendon and others by Charles II. The earliest government was set aside in 1669 by a plan originating in the brain of the phi- losopher Locke, which contemplated an elaborate system of offices of state, an hereditary nobility, and similar features, impossible of realization in an infant settlement of scattered planters. 2 But in 1691 this system was inferred that all the inhabitants were subjects, and of course were entitled to all the privileges of Englishmen. See Annals, 639, 658. 1 See Campbell, Puritan in Holland, England, and America. He claims that a few Dutch elements crept into the institutions of Pennsylvania, and partly accounts for their existence by point- ing out that the mother of William Penn was Dutch. However this may be, Penn's father and family were English, and he always accounted himself an Englishman. That, with local modifications, the institutions of Pennsylvania were essentially English, cannot be historically questioned; and the presence of an occasional feature of possibly Dutch origin only serves to accentuate the predominance of the English features that make up the whole body of the laws. 2 " The proprietors attempted to create a political fabric through the aid of Locke — a philosopher of the Social Contract school — whose Fundamental Constitutions quickly illustrated how vain it was to attempt to govern Englishmen by a paper constitution whose complicated and artificial details offended the national instinct by departing from the primitive tradition.'' — Taylor, Origin and Growth of the English Constitution, 24. These constitutions may be seen in their first state in Carroll, II. 361; and the modifications are given under the years of issue in the Shaftesbury Papers. See, 24 SOURCES OF THE CONSTITUTION. chap. abrogated by popular demand. Carolina became a royal province in 1729, with the usual form of colonial government. The governor convened, prorogued, and dissolved the legislature, and had the right of veto on its enactments. He appointed civil and military officers, and, as has been tersely said, was "invested, as far as compatible, with the executive and judicial powers of the English monarch." 1 North and South Carolina, long practically divided for reasons of convenience, were eventually separated, each having a government of its own. Georgia was founded in 1732 with a charter from George II. Its earliest administration, by a company resident in England, was so unsuccessful that this char- ter was soon surrendered, and the colony became a royal province with government of the customary form. 2 The necessary repetition in these details of the politi- cal systems of the colonies is not without value, as evi- dence of the unanimity with which the colonies followed a common model. Where, at first, in charter or usage, some features of this model were lacking, popular de- also, Carolina Charters, London, 33, etc. A recent biographer of Locke (H. R. Bourne) notes that the plan was initiated by Shaftes- bury, and modified by other proprietors; and although Locke had a large share in the work, not all the features were such as he him- self approved. 1 Crane and Moses, Politics, 123. 2 " In respect to its ante-revolutionary jurisprudence, a few re- marks may suffice. The British common and statute law lay at the foundation. The same general system prevailed as in the Caroli- nas, from whence it sprung." — Story, Commentaries on the Consti- tution of the United States, I. 99, § 145. I. THE ANGLO-AMERICAN COLONIES. 25 mand invariably was made by the colonists themselves, for the supply of the lack, until the full outline of English governmental institutions was completed, as far as was applicable to colonial conditions. 1 Referring to this subject, and to the persistence of the old tendency even in later and more modern States of the American Union, Mr. Bryce observes : " The simi- larity of the frame of government in the thirty-two repub- lics which make up the United States — a similarity which appears the more remarkable when we remember that each of the republics is independent and self-deter- mined as respects its frame of government — is due to the common source whence the governments flow. They 1 The scope of the present volume does not admit of a discussion of the interesting questions associated with the history of American townships and local government. It is just possible those questions have been pressed too far. But the student of ancient institutions must recognize their great importance. Nor can he fail to appre- ciate the force with which evidence drawn from such sources confirms the truth of the development of American governments from the historic past. See Scott, Development of Constitutional Liberty, I 74 ; Fiske, American Political Ideas, 1 7-56 ; Fiske, "Town Meeting," Harper's Magazine, January, 1885; Professor Adams, "Germanic Origin of New England Towns," in Johns Hopkins University Studies, 1st Series, II.; E. Channing, " Town and County Government," Ibid., 2d Series, X. ; Doyle, English Colonies in America, Puritan, etc., II. 7-26; Professor Andrews, "Origin of Conn. Towns," Annals of American Academy, Vol. I.; Hildreth, History, I. chap, vii.; De Tocqueville, Bowen's Translation, Democracy in America, I. chap, v.; Parker, Origin, Organization and Influence of Towns of New England; Massa- chusetts Historical Society, 1866-67, etc - See also Statutes of New England States, Law Reports, etc. 26 SOURCES OF THE CONSTITUTION. chap. are all copies, some immediate, some mediate, of ancient English institutions; viz. chartered self-governing cor- porations, which under the influence of English habits and with the precedent of the English parliamentary- system before their eyes, developed into governments resembling that of England in the eighteenth century. Each of the thirteen colonies had, up to 1776, been reg- ulated by a charter from the British crown, which, ac- cording to the best and oldest of all English traditions, allowed it the practical management of its own affairs. The charter contained a sort of skeleton constitution which usage had clothed with nerves, muscles, and sin- ews, till it became a complete and symmetrical working system of free government." 1 " The English Constitution was generally the type of these colonial governments," remarks Sir Erskine May. " The governor was the viceroy of the crown ; the legis- lative council, or upper chamber, appointed by the gov- ernor, assumed the place of the House of Lords, and the representative assembly, chosen by the people, was the express image of the House of Commons." 2 In the words of the author of the History of the English People, "The colonists proudly looked on the constitu- tions of their various States as copies of that of the mother- country. England had given them her law, her language, her religion, and her blood." 3 1 Bryce, American Commonwealth, I. 458. 2 Constitutional History of England, II. 511. 8 Green, History, V. 217, § 1440. I. THE ANGLO-AMERICAN COLONIES. 27 But the American colonies not only copied English institutions ; they long remained politically united to Great Britain, and her government long continued to be their own supreme or imperial government. Though every colony was independent of every other colony, and possessed much freedom of local administration, yet al- legiance to the mother-country and to the throne bound all together, and prepared the way for the subsequent federal system of the United States. There was, in fact, even then, a beginning of the federal system, and London was the colonial capital, as Washington of to-day is the federal capital. 1 The colonists were British subjects. The king was " supreme and sovereign lord " of all alike, — the cen- tral executive. Parliament, with whatever limitations in practice, was the central legislature, and the Privy Coun- cil exercised the jurisdiction of supreme judicial tribunal^ The authority of the king was employed with a varying degree of directness in different colonies. His preroga- tives were, for the most part, put in operation by the local governors. In crown colonies, where the royal contact was closest, civil government largely depended upon special instructions and commissions issued from time to time directly from the throne. Colonial legisla- tion was subject to the sovereign's approval or veto. All charters were granted by him, and his powers were exer- cised on occasion in other acts affecting the fundamental status of colonial administration. 2 1 The analogy is not close, but it is real as far as it goes. 2 " The fact that the soil upon which the English colonies in 28 SOURCES OF THE CONSTITUTION. chap. Parliament made laws for the supreme government of the colonies. While some confusion of ideas existed as to the proper exercise of this power, the power was always claimed unlimitedly by Parliament itself, and its operation was willingly conceded by the colonists in cases affecting foreign, commercial, and Indian affairs, and what might be called imperial as distinct from in- ternal interests. The legislation of the colonial assem- blies was, indeed, occasionally annulled by a board or council in England, as well as by Parliament. And denial of all parliamentary authority, though made in some of the colonies after the passage of the Stamp America were planted, came to them through royal grants, the fact that every form of political organization established thereon rested upon royal charters, were the foundation stones upon which the colonists gradually built up, in the light of their actual experi- ence, their theory of the political relations which bound them to the mother-country. Their rights as Englishmen endowed with ' all liberties, franchises, and immunities of free denizens and natural subjects ' flowed from their charters, which, as between themselves and the crown, were irrevocable though not non-forfeitable contracts. The earliest form of direct legislative control to which any of the colonies were subjected in the form of ordinances or instructions for their government emanated, not from the law-making power of the king in Parliament, but from the ordaining power of the king in council. And at a later day, when the colonial assemblies began the work of legislation on their own account, the validity of their enactments depended, not upon the approval of the English Parlia- ment, but upon that of the royal governor, who stood as the ever- present representative of his royal master. With the founding of the colonies, and with the organization of their political systems, the crown had everything to do." — Taylor, Origin and Growth of the English Constitution, 25, 26. I. THE ANGLO-AMERICAN COLONIES. 29 Act of 1765, was not general until the verge of actual separation from the mother-country. The jurisdiction of the Privy Council as a supreme court for colonial affairs, in appeals from decisions of the colonial judiciary, and in other matters, was con- stantly exercised. And it was fully recognized by all the colonies at the period of the American Revolution, and regarded as a benefit and protection. Yet notwithstanding mutual ties of blood and insti- tutions, it is easy to perceive, looking back from our own time, that there existed fair opportunity for friction, and even for eventual separation in the somewhat com- plex and vaguely defined relations, and in the gradually diverging interests of Great Britain and her distant children. Among causes of uneasiness is often men- tioned the development of a democratic tendency among the colonists, manifesting itself in varied forms, but chiefly in contests between the legislatures and the royal governors. This tendency, which eventually be- came characteristic, is, perhaps, not to be wondered at, if it be remembered that the colonists were com- moners, without the restraining presence of a resident nobility, and that the colonial period was a period which witnessed the overthrow of Charles I. by his House of Commons, the rise of the English Common- wealth, and the Revolution of 1688, as contemporaneous movements in the mother-country, ending in the modern control of the crown by the popular branch of Parlia- ment. But the truth is, that as the colonists grew in 30 SOURCES OF THE CONSTITUTION. chap. numbers and material wealth, and began to realize their own power, interference across seas came to be less and less easy to maintain on one side, or to endure on the other. And with the fall of Canada and the con- sequent overthrow of a threatening French power in the north and west, America ceased to feel the need of dependence upon the empire. Yet although a sense of the inevitable approach of American independence came to find expression even among keen foreign observers on the continent of Europe, 1 the colonists themselves, up to the very eve of war, were averse to the thought of actual separation. The records of the time are filled with evidences of the powerful hold which the mother-country had upon their hearts. They loved Great Britain as their old home. 2 "They regarded," remarks Froth- 1 " Turgot and Choiseul had very early recognized that the separa- tion of the colonies from the mother-country was only a question of time.'' — Von Hoist, Constitutional History of the United States, I. i. See also Bancroft, History of the United States, IV. 399. Durand wrote in August, 1766, "They are too rich to remain in obedience." See also, Frothingham, Rise of the Republic of the United States. 2 " This feeling was not an easy one to eradicate, for it was based in blood, training, and sympathies of every nature. It would not have been easy to distinguish the American from the Englishman; it would, indeed, have been less easy than now, when the full effects of a great stream of immigration have begun to appear. American portraits of the time show typical English faces. Whenever life was relieved of the privations involved in colonial struggle, the per- son at once reverted to the type which was then the result of cor- responding conditions in England. The traditions of American I. THE ANGLO-AMERICAN COLONIES. 31 ingham, " their connection with the mother-country to be a fountain of good. They looked upon the English Constitution as their own. " * Even in the midst of the final contest, so great a leader as the elder Adams could write : " Would to God, all, even our enemies, knew the warm attachment we have for Great Britain." 2 And John Adams, 3 referring to "the habitual affection for England," during colonial times, was able to declare truthfully that "no affection could be more sincere." 4 officers were English; their methods were English; even the atti- tude which they took towards the private soldiers of their armies was that which was characteristic of the English officer of the time. In the south, the men who led and formed public opinion had almost all been trained in England, and were ingrained with English sympathies and even prejudices. In the north, the acute general intellect had long ago settled upon the ' common rights of English- men 1 as the bulwark behind which they could best resist any attempt on their liberties. The pride of the colonists in their posi- tion as Englishmen found a medium of expression in enthusiasm for ' the young king '; and it would be hard to imagine a more loyal appendage of the crown than its English colonies in North Amer- ica in 1760." — Professor Johnson, of Princeton, in Encyclopedia Britannica, 9th ed., XXIII. 736. 1 Frothingham, Rise of the Republic of the United States, 123. The following extract from the American press of the time fairly expresses the popular feeling : " Our constitution is English, which is another name for free and happy, and is without doubt the per- fectest model of civil government that has ever been in the world." — Independent Advertiser, May 29, 1 749. 2 Letter to Charles Thompson, 1774, Life of Warren, 232. 3 Works, X. 282. 4 Referring to the period preceding the Revolution, Frothing- ham says : " A town under the lead of zealous Whigs voted that the union between the colonies and Great Britain was not worth a rush; 32 SOURCES OF THE CONSTITUTION. chap. When the contest came, it came as a struggle over ancient English constitutional principles. The drift had long been toward an opening of the whole question of mutual civil relations, when George III. forced the ques- tion to an issue by attempted taxation through act of Parliament. England was proud of America as her occasionally a writer urged in an essay in the newspapers that the only way to place American liberty on a firm foundation was to form an independent nation ; but these were the views of extrem- ists, and were generally disavowed. The great body of the Whigs united with the Tories in prizing this union as of incalculable value. They regarded themselves as fellow-subjects with Britons. They looked on the people of both countries as being one in the essential elements of nationality, political ideas, language, and the Christian religion; and one in the love of a noble literature and precious historic memories. They kindled at the sight of the old flag and at thoughts of the mother-land — " 'A land of just and old renown, Where freedom broadens slowly down From precedent to precedent ; ' and it was the prevailing sentiment that a recognition of coequal rights would enable the people of both countries to live long under the same flag. The popular leaders averred that they did not deny the sovereignty, but opposed the administration. They did not ascribe the obnoxious measures to the king whom they revered, or to the constitution which they venerated, or to the nation which they loved, but to despotic ministers and corrupt majorities." — Rise of the Republic of the United States, 294, 295. In another place he well remarks : " I cannot but think that much error has crept into American history by not keeping in view the difference between opposition to the measures of an administration and resistance to the supreme power of the empire, or to the sovereignty." And looking back over the period of colonial history, adds, "The immi- grants . . . bore toward [England] a noble affection." — Ibid. 67. I. THE ANGLO-AMERICAN COLONIES. 33 chief imperial possession ; but she had not yet learned the secret of imperial administration, and her old cus- toms and legal theories, lingering from days when she had been but an island kingdom, were inapplicable to the new conditions. By those theories, the colonists, being British subjects, were as completely subordinated to Parliament as were all other British subjects. True, they had long been permitted to regulate their internal affairs, and above all, to vote their own taxes ; but Parlia- ment had on sundry occasions asserted its right of taxa- tion, and held such right to be a necessary part of its own position as supreme legislature. As the legal theory of Parliament had grown up under purely national con- ditions, this parliamentary claim was theoretically cor- rect. But it did not accord with the new imperial facts. On the other hand, the colonists held that the imperial facts ought to be conceded. Though British subjects, they were separated by wide seas from the older land, and were unable to take active part in its political life. A fundamental principle of the liberties of Englishmen associated, as the colonists understood it, the right of representation with the right of taxation. The principle had been enunciated in their colonial legislation almost from the beginning of colonial settlement, and had been steadily acted upon by them. They were without repre- sentatives in Parliament, and therefore Parliament could not, in their view, rightfully tax them. They were un- willing to pay the parliamentary tax, though, through their own representatives in the colonial legislatures, 34 SOURCES OF THE CONSTITUTION, chap. i. they were ready to vote more liberal supplies than those proposed by Parliament. Their plea was conservative, for it desired that the then existing state of affairs should be continued. The war that ensued was fought on the part of the colonists in defence of what they thus held to be their rights as men of the English blood ; and American independence resulted from this constitutional struggle. CHAPTER II. MAKING OF THE AMERICAN CONSTITUTION. THE political steps that led to American indepen- dence were taken gradually. At the beginning of the war, an intercolonial or " continental " Congress assembled. Gatherings, similar in principle, had been held on other occasions in colonial experience without involving a denial either of the civil rights of individual colonies or of the authority of the mother-country. Indeed, the colonists, though in no gentle mood, con- templated at first not political separation, but only defence against what they claimed to be an unconstitu- tional attack upon their liberties as English subjects ; and Englishmen had many a time in the history of the mother-land itself taken up arms for the preservation of liberties. 1 But the logic of events on American soil 1 " A separation from Great Britain was viewed with alarm and trepidation, and was not only opposed by the Tory party as a whole, but also by many Whigs, who feared it might lead to anarchy and its attendant evils." — Straus, Origin of Republican Fortn of Government in the United States, 5. " It was long before the ill will, which the systematic disregard by Parliament of the rights of the colonists had excited, triumphed over this feeling. Even in August and September, 1775 — that is, half a year after the 35 36 SOURCES OF THE CONSTITUTION. chap. slowly shaped the issue, and the Congress was forced more and more into acts involving the assumption of sovereign power, and plainly inconsistent with loyalty to battle of Lexington — so strong was the Anglo-Saxon spirit of con- servatism and loyalty among the colonists, that the few extremists who dared to speak of a violent disruption of all bonds, entailed chastisement upon themselves and were universally censured." — Von Hoist, Constitutional History of the United States, I. 2. See also Works of John Adams, II. 423, and American Archives, III. 21, 196, 644, etc. "In May, 1775, Washington said: 'If you ever hear of me joining in any such measure [as separation from Great Britain], you have my leave to set me down for everything wicked.' He had also said : ' It is not the wish or interest of the govern- ment [meaning Massachusetts], or of any other upon this continent, separately or collectively, to set up for independence.' And in the same year, Benjamin Franklin assured Chatham, that no one in America was in favour of separation. As a matter of fact, the peo- ple of the colonies wanted a redress of their grievances — they were not dreaming of separation, of independence. . . . We must also remember that the Revolution was begun and carried on by a noble minority — that the majority were really in favour of Great Britain." • — Ingersoll, North American Review, CLV. No. 2, August, 1892, p. 183. It is proper in this connection to add, that in the opening period of the war, the feeling in England in favour of American brethren " was intense. Officers resigned their commissions rather than serve in America; the great cities took open ground in favour of the colonies; and some of the English middle classes were mourning the dead at Lexington. As the war increased in its intensity, this sentiment necessarily decreased; but even while Parliament was supporting the war by votes of more than two to one, the ministry was constantly hampered by the notorious consciousness that the real heart of England was not in it. Even when 25,000 men were voted at the king's wish, provision had to be made to obtain them from Germany." — Johnson, Encyclopedia Britannica, 9th ed., XXIII. 742. ii. MAKING OF THE CONSTITUTION. 37 the crown. For awhile even these were excused, on the plea of temporary emergency. Repeatedly, and even to the last, did the colonies address petitions to the king, regretting the necessity to which they were driven, and urging, in the old words of English usage, "redress of grievances " for the restoration of peace and unity. Yet, step by step, as by a resistless destiny, were they swept on toward the complete severance of the old relations. Opinion changed with the progress of the conflict, and a popular demand for independence arose and grew into a controlling motive. The Declaration of 1776 thus resulted, and the war finally developed into a struggle for national existence. But it is important to bear in mind, that the Revo- lution disarranged but slightly the fabric of government in the individual colonies. "It did not," Webster has affirmed, " subvert the local laws and local legislation." It " did not," Chancellor Kent has said, " involve in it any abolition of the common law." * When indepen- dence came, and the old colonies were turned into new States, no real political break occurred ; but constitutions embracing the essential principles of the colonial system were adopted in all the States save two : in Delaware, Maryland, New Jersey, Pennsylvania, North Carolina, and "Virginia in 1776; in New York and Georgia in 1777 ; in South Carolina and Massachusetts in 1778 ; and 1 " British and colonial statutes made prior to the Revolution continued also in force, unless expressly repealed." — The Critical Period, etc., 69. 38 SOURCES OF THE CONSTITUTION. chap. in New Hampshire in 1784. 1 Connecticut and Rhode Island were the exceptions, and, as already seen, the former continued under its royal charter until 18 18, and the latter until so late as 1842, i.e. until within living memory. 2 As Professor Johnson has said, these " new constitutions were the natural outgrowths of the colonial system, established by charters, or by commissions to royal or proprietary governors ; and the provisions of the constitutions were only attempts to adopt such features as had grown up under the colonial systems, or to cut out such features as colonial or State experience had satisfied the people were dangerous." 3 And as the political usage of the colonies had come originally from Great Britain, and had been adapted and modified in 1 "On the 10th of May, 1776, the Continental Congress recom- mended to the several conventions and assemblies of the colonies the establishment of independent governments ' for maintenance of internal peace, and the defence of their lives, liberties, and proper- ties.' Before the end of the year in which this recommendation was made, by far the greater part of the colonies had adopted written constitutions, in which were restated in a dogmatic form all of the seminal principles of the English constitutional system. Thus ended that marvellous process of growth, through which the English colonies in America were rapidly developed into a group of independent commonwealths, in which each individual member was, in its organic structure, a substantial reproduction of the English kingdom." — Origin and Growth of English Constitu- tion, 45. 2 " It was not possible that the term American should suddenly supplant that of Englishman; but the successive steps by which the change was accomplished are easily perceptible." — Johnson, Encyclopedia Britannica, 9th ed., XXIII. 739. 8 New Princeton Review, September, 1887. u. MAKING OF THE CONSTITUTION. 39 colonial practice, so now that political usage passed on to the constitutions of the new States, to be again adapted and modified by varying wants as such might arise, but with essential characteristics still maintained and steadily transmitted. From the nature of the case, there could be no settled central government for the newly forming nationality in the early stages of the contest, and before inde- pendence had been formally proclaimed. In assuming governmental functions, the Continental Congress be- came essentially a revolutionary body. Its existence was simply the result of an emergency created by the need of united opposition to the home authorities. Its powers rested upon the acquiescence of the several colonies and were temporary and transitional. And it was re- garded, while it lasted, as an advisory assembly rather than a government. But when the centre of colonial unity in the crown was lost by the Declaration of Independence of 1776, a permanent union on American soil became a political necessity. And on the very day that saw the Declaration put forth, steps were taken which led to the adoption, in the following year, of " Articles of Confederation and Perpetual Union," binding all the States in a " firm league of friendship with each other." This earliest attempt at the construction of a national government established what, as the sequel proved, was neither national nor a government. In reality it was a mere league of States, allied for common aims, but with each 40 SOURCES OF THE CONSTITUTION. chap. State reserving to itself almost all elements of power, and conceding to the common administration little else than responsibilities without the means of meeting them. Its main feature was a congress of one house, without an executive, and without any proper judiciary. It was, perhaps, the nearest approach to central authority then attainable ; but, modelled upon the previous Revo- lutionary government, and perhaps, in part upon Dutch ideas borrowed from the Netherlands, it was a radical departure from long-established usage of the English race. 1 Not to trace its disastrous history in detail, enough to say, that its incompetency for all the purposes for which it was established, brought about, after ten years of failure, its utter breakdown, and led to the calling, by general demand, of the Constitutional Con- 1 It is to be doubted whether there was in the Articles of Con- federation any intended following of Dutch institutions, though as a matter of fact, several close analogies may be drawn. But Campbell is entitled to speak on the subject. He says: "When the rebellious American colonies framed a government for them- selves during the Revolutionary War, they adopted articles of confederation in which this feature of the Netherland republic was incorporated in all its fulness. Under these articles, a congress was established in which each State, whatever the number of its representatives, from two to seven, had but a single vote. This Congress also, like the States General of the Netherlands in the early days, exercised all executive powers. Neither republic had a president or other executive officer, as did their separate states. In each the legislative body made war and peace, appointed all offi- cers, civil and military, and exercised all the functions of govern- ment except those purely judicial." — Puritan in Holland, Eng- land, and America, II. 422. n. MAKING OF THE CONSTITUTION. 41 vention which met in Philadelphia in 1787, and framed the present Constitution of the United States. 1 The moment for final constitutional action was well chosen. A healthy change from the spirit of reaction against all authority — a spirit which manifested itself at the close of the war — had gradually come over the young nation. Modern democracy, bred of the French Revo- lution, was not yet the dangerous force it was so soon to be in America and Europe. 3 The leaders of opinion and action had learned wisdom by their unsuccessful experi- ment with constitutional novelties under the Confedera- tion, and were inclined to distrust political theory, as distinct from sound and practical political experience. "The spirit of 1787 was an English spirit, and there- fore a conservative, tinged, no doubt, by the hatred of tyranny developed in the Revolutionary struggle, tinged also by the nascent dislike of inequality, but in the 1 " The government under the Articles of Confederation had proved so weak that by 1787 the American people were left as ' thirteen distinct communities under no effective superintending control.' [Randolph's letter, Elliot, I. 484.] The condition of the country was one in which no indication of ' national disorder, poverty, or insignificance ' was wanting. [Hamilton, Federalist, No. 15.] To substitute for the decayed fabric of the Confederation a central power sufficient to cope with the existing evils was thus the task of the convention." — Publications of American Academy of Political and Social Science, No. 9, p. 204. See also Curtis, History of Constitution, etc. 2 " Many of the fifty delegates shared Hamilton's contempt for a democracy." — Landon, Constitutional History of the United States, 64. 42 SOURCES OF THE CONSTITUTION. chap. main an English spirit, which desired to walk in the old paths of precedent." 1 No attempt was made by the Philadelphia Convention to reconstruct or even to amend the Confederation. Both it, and the peculiarities it stood for, were abandoned as by common consent. The constitution adopted was something very different. It was a return to the older forms, and a recognition of the abiding facts of English constitutional usage in America. It provided for a per- sonal executive, a legislature of two branches, a judiciary, and — in completed stage — a bill of rights based upon the historic liberties. The Convention practically took the model of colonial government as it had long and familiarly existed, and as adapted in the State govern- ments then freshly set up, and applied it to the nation ; introducing certain features made necessary by the new civil conditions in America, and others drawn directly from the Constitution and contemporaneous laws and customs of Great Britain. " No one familiar with the common law of England," remarks Mr. Justice Miller, " can read the Constitution of the United States without observing the great desire of the Convention which framed that instrument to make it conform as far as possible with that law. . . . To look at the general outlines organizing the new gov- ernment into its various branches, there is but little departure from that of the English government. The President, the Senate, and the House of Representatives 1 Bryce, American Commonwealth, I. 300. II. MAKING OF THE CONSTITUTION. 43 correspond in essential features with the King, Lords, and Commons of Great Britain. And although there was a necessity arising from the bringing together of thirteen different States into one general government, with a recognition of many of the most important powers of government left in the States themselves, to vary in some respects the powers which were confided to the President, the Senate, and the House of Representatives from those which had by immemorial usage come to be the powers of the King, the House of Lords, and the House of Commons of Great Britain, yet the analogy is very close." * Accustomed as we are to the progress of free institu- tions in civilized lands during the present century, it is difficult to realize that in 1787, at the time this Conven- tion met, the only nations that actually possessed such liberties were England and little Switzerland. 2 Had the 1 Miller, Lectures on the Constitution of the United States, 486, 487. As the words of a recent justice of the Supreme Court of the United States, these words are exceedingly significant. The decis- ions of the Supreme Court have recognized the principle of historic continuity between English and American law. 2 No one claims that the Constitution of the United States is indebted to Switzerland for its characteristics. In the debates of the Philadelphia Convention, Swiss institutions were mentioned only to be criticised. — See Elliot's Debates, V. 201, 208, 236. Nor is the republic of Venice worth mentioning in this connection, for it was in a state of dissolution when the Philadelphia Conven- tion met, and it went to pieces in 1 798, having in no way influenced American affairs. Douglas Campbell makes a claim, however, for the Netherlands. He says: "To the fathers of the American re- public, who carried through the war of the Revolution, and after- 44 SOURCES OF THE CONSTITUTION. chap. citizens of the new commonwealth possessed no kinship with England, and no inheritance from her political system, they would still have been affected and swayed, wards formed the American Constitution, it was a living reality, as much so as the monarchy of England." — Puritan in Holland, Eng- land, and America, II. 420. But we may search in vain to find conscious copying from contemporaneous Dutch institutions in the American Constitution. At that time, as Straus remarks, "The re- public of Holland was in a very precarious state, so much so, that Mr. Adams says of it, in his ' Defence of the Constitutions of Gov- ernment,' ' Considering the critical situation of it, prudence dictates to pass it over ! ' " — Works of yohn Adams, IV. 356, quoted in Straus, Origin of Republican Form of Government in the United States, 83. The fact is, that notwithstanding the spirit of freedom which illumines the history of Holland, republican principles, as Americans understand them, are not to be looked for in that quar- ter. Charles Francis Adams, in a note to the quoted passage from the works of John Adams, remarks : " The government of Holland grew out of the immediate necessities of the heroic struggle with the power of Spain. It never could be presented as a model for imita- tion by any people ; it was a singular combination of corporation and aristocratical influence with a federal principle. The author had good reason for avoiding, at the moment of publication, any analysis of a system which was then crumbling, and which has since been swept completely away." — p. 357. For these reasons, refer- ence to Venice and Holland have been omitted above. It is the simple truth, that at the time of the meeting of the Constitutional Convention, the only two nations, actually possessing liberties were England and Switzerland. With Venice and Holland, liberties were then little more than a memory, and neither nation was a fit model for free government. Mr. Campbell claims that Dutch usages have crept into the Con- stitution by having been first incorporated into State usage, though the cases he specifies are few and doubtful. One such case, for instance, is that of the process of voting in the national Senate by States. But when this was proposed in the Philadelphia Convention, ii. MAKING OF THE CONSTITUTION. 45 almost of necessity, by the force of her experience and her example. A source of literary influence in favour of English in committee of the whole, it was introduced by Roger Sherman of Connecticut, with a reference to England, not to the Nether- lands. The real attitude of the Philadelphia Convention can be gathered from violation of the Constitution, but the loyal answer was, that while the war lasted it was disloyalty to stickle over the Constitution, since unless the war could be victoriously ended, the Constitution itself would be of no value. But the true answer is, that as commander-in-chief of the army and navy, the President has the constitutional power to em- ploy the means recognized by the laws of war as necessary to con- quer the enemy. Congress can pass no law which can deprive the President of the power which the Constitution confers, in creating him commander-in-chief." — Constitutional History and Government of the United States, 205. vi. THE AMERICAN EXECUTIVE. 165 the prosecutor of crimes ; and in this capacity he granted reprieves and pardons. Comparing the Constitution of the United States, Sec- tion i of Article II. is noted for its great width and flexi- bility, — "The executive power shall be vested in a President of the United States of America." And so is Section 2 of the same article, — " He shall take care that the laws be faithfully executed, and shall commis- sion all officers of the United States." 1 The President appoints, with the consent of the Senate, all chief civil officers of the nation, and commissions all national officials. And though the English theory of relation to judicial matters is ignored, he has the royal power of appointing judges ; and the Chief Justice and Justices of the Supreme Court, and all judges of the national courts are commissioned by him. As preserver of the peace, 1 In his discourse on The Jubilee of the Constitution, John Quincy Adams says : " It has perhaps never been duly remarked that, under the Constitution of the United States, the powers of the executive department, explicitly and emphatically concentrated in one person, are vastly more extensive and complicated than those of the legisla- tive. The language of the instrument in conferring legislative authority is, ' All legislative power, herein granted, shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.' But the executive authority is unreserved in terms, — ' The executive power shall be vested in a President of the United States of America.' " Upshur says : " We have heard it gravely asserted in Congress, that, whatever power is neither legislative nor judiciary, is of course executive, and as such belongs to the President under the Constitution." — Nature and Character of our Federal Govern- ment. 166 SOURCES OF THE CONSTITUTION. chap. he grants reprieves and pardons to breakers of the peace. 1 The relation of the President to his Cabinet has already been referred to. When Article II. Section 2 of the Constitution was in formation at Philadelphia, a proposi- tion was made to give the executive a Privy Council similar to that of the English king ; and a draft was offered to the effect, that " the President may from time to time submit any matter to the discussion of the council of state, and he may require the written opinions of any one or more of the members. But he shall in all cases exercise his own judgment, and either conform to such opinions or not, as he may think proper." 2 This draft was referred to a committee, which reported it in the somewhat altered form, that " the President shall have a Privy Council . . . whose duty it shall' be to advise in matters respecting the execution of his office, which he shall think proper to lay before them ; but their advice shall not conclude him, nor affect his responsibility for the measures which he shall adopt." 3 This was again 1 " One of the powers intrusted to the President ... is that of granting reprieves and pardons. ... It is derived from the history of our British ancestors, and in the absence of any more particular definition of it than is found in this short sentence of the Constitu- tion, so far as it has become the subject of public discussion, or of judicial decision, reliance has been had mainly upon the nature and character of the power as exercised by the crown of Great Britain." — Mr. Justice Miller, of the Supreme Court, Lectures on Constitution of the United States, 164, 165. 2 Elliot, Debates, V. 446. s Ibid. V. 462. vl. THE AMERICAN EXECUTIVE. 167 referred to committee, and finally was adopted in the shape in which it appears in the Constitution, — providing simply that the President " may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices." 1 Thus, a Privy Council was not established ; and the President was left to advise with his own heads of de- partments, if he desired and in so far as he desired, or to act entirely without their advice and in accordance with his own will. 2 1 Constitution of the United States, Art. II. Sec. 2. 2 " Jefferson, who certainly had as much confidence ill his official advisers, among whom were Madison and Gallatin, as any other President, did not ask, I was assured by one of its most trusted members, the advice of his Cabinet on, perhaps, the two most important measures of his administration, — the purchase of Louisi- ana and the rejection of the treaty concluded by Monroe and Pinckney in 1806. The former of these measures, as involving the acquisition of foreign territory, was ever regarded as the great constitutional question of the day. President Lincoln, it is under- stood, seldom or never had any cabinet meetings." — W. B. Law- rence, LL.D., North American Review, November, 1880, p. 394. The author once had a conversation with President Rutherford B. Hayes regarding the practical operation of the presidency. By his permission I made notes of the conversation at the time, for publication in this book. Asking about the action of a President independently of the advice of his Cabinet, " he told me that he him- self and other Presidents had so acted occasionally. As to the general relations of the Cabinet, he said that Presidents were mas- ters of the situation, not only by law, but by the fact that Cabinet officers were appointed by and dependent upon the executive. He said the custom of the past had varied; that some Presidents had 168 SOURCES OF THE CONSTITUTION. chap. This intention to make the President a personal execu- tive, free from cabinet or council control, receives further been more influenced by their cabinets than others; that President Buchanan was much worried by his Cabinet, because not strong enough to insist on his own will. On the other hand, President Lincoln had decided on his emancipation proclamation without con- sulting his Cabinet, to whom he read it over merely for suggestion and amendment. He (President Hayes) had once decided a measure, overruling his Cabinet. He knew them to be opposed to it and did not ask their views, but announced his own policy, and carried it out. In matters of a department, he gave greater weight to the opinion of the secretary of that department, if the secretary opposed his own views ; but on two occasions, at least, he had decided and carried out matters against the wishes of the secretary of the depart- ment affected. He had done so in the case of his Secretary of the Treasury, whose opinion he usually valued. In each case, knowing the certainty of diverse views from the secretary, he had not asked those views, but had announced to the secretary his own policy and decision. In answer to a question of mine, as to whether the President or the secretaries usually initiated business at meetings of the Cabinet, he said that there was no uniform practice; but that every secretary was full of ideas as to his own department. When wishing to introduce a measure, the secretary usually consulted the President privately. If the President disfavoured the proposed measure, it was, of course, dropped. In fact, no measures could succeed except by the President's own act in either introducing them or approving them. " He remarked, that few writers or public persons understood the real power of the American executive. Practically, the Presi- dent had the nation in his hand. He was commander-in-chief of the army and navy, and had control of foreign affairs. He could at any time force Congress into war with foreign powers. The complicate relations with foreign powers rendered this always easy. By law, Congress had the power to declare war, but the real power was with the executive. He detailed some of his own experience with foreign affairs in proof of the constant delicacy of such mat- vi. THE AMERICAN EXECUTIVE. 169 light from the law of 1789, which created cabinet minis- ters or heads of executive departments. The law enacts ters. But, said he, if once war exists, the President has the ' war powers'; and no man has defined what those are, or placed a limit on them. The executive power is large because not defined in the Constitution. The real test has never come, because the Presidents have, down to the present, been conservative, or what might be called conscientious, men, and have kept within limited range. And there is an unwritten law of usage that has come to regulate an average administration. But if a Napoleon ever became President, he could make the executive almost what he wished to make it. The war power of President Lincoln went to lengths which could scarcely be surpassed in despotic principle. " I reminded him that Mr. Bryce characterized this power of Lincoln as practically that of a dictator. President Hayes agreed with the description. He said the scope of this executive power had never been really realized, and that the practical use of po"wer, even by an ordinarily strong President, was greater than the books ever described. " He said that much of the legislation of Congress was ordinarily initiated by the President. The Constitution did not provide for this, but in practice it was done. A large part of legislation was first considered in Cabinet, and then started in Congress by contact privately between the secretaries and the committees of Congress. I remarked that Mr. Bryce had enlarged on the weakness of the contact between the President and Congress in the initiation of legislation, and had especially pointed out that the presidential message had no necessary influence. He replied that the message was without legal force, and that Congress could be influenced by it or not as it saw fit; but that if one were to compare the messages with legislation, it would be found that legislation largely resulted from the suggestions of messages. Really, the message made a public statement of matters, which, less officially, were pressed upon Congress by cabinet ministers, as already mentioned. While it was a fact that no regular channel of necessary legislative initiative was possessed by the President, he, nevertheless, did initiate a large 170 SOURCES OF THE CONSTITUTION. chap. that the Secretary of State " shall conduct the business of the said department [foreign affairs] in such man- ner as the President of the United States shall, from time to time, order and instruct." 1 And the same principle was applied to the heads of other departments. 2 The ministers were thus designed, in their very creation, to be merely the agents of the executive, and to carry out his will, rather than their own ; having precisely the rela- tion that Lord North bore to George III. 3 Washington proportion of, sometimes the leading, legislation of his administra- tion. He had also a certain amount of influence in preventing in advance legislation that was distasteful to him, or even in" shaping and amending bills in Congress, by intimating unofficially his disap- proval and possible veto." — Notes of Conversation of the Author with President Hayes, September 30, 1 889. 1 Act of July 27, 1789. 2 See 1 Statutes at Large, 49. In addition to the wgrds above, the law requires the Secretary of State or the Secretary of War to " perform and execute such duties as shall, from time to time, be enjoined on, or intrusted to him by the President of the United States, agreeably to the Constitution." In like manner, the duty of the Secretary of the Navy " shall be to execute such orders as he shall receive from the President of the United States " relative to his department. — 1 Statutes at Large, 553. These laws, with immate- rial changes, are in force at the present day. See Revised Statutes of the United States, passed by 1st session of 43d Congress, 1873- 1874, etc.; 2d ed., p. 32, Sec. 202; p. 35, Sec. 216; p. 7l,Sec.4i7. 8 " There can be no doubt that the President, in the exercise of his executive power under the Constitution, may act through the head of the appropriate department. The heads of departments are his assistants in the performance of his executive duties, and their official acts, promulgated in the regular course of business, are pre- sumptively his acts. That has been many times decided by this [the Supreme] Court." — Runkle v. United States, 122 U. S. 543, 557. vi. THE AMERICAN EXECUTIVE. 171 originated the practice of consulting all the heads of de- partments on important measures. But although " cabinet meetings " eventually became customary, the Presidents have never hesitated to act independently of advice when they thought fit, and it is said that Abraham Lincoln, wielding greater power than any of his predecessors, seldom held such meetings at all. " The Cabinet, as a body of councillors," remarks Judge Cooley, "has no necessary place in our constitutional system, and each President will accord to it such weight and influence in his administration as he shall see fit. The President — not the Cabinet — is responsible for all the measures of the administration, and whatever is done by one of the heads of department is considered as done by the President, through the proper executive agent. In this fact consists one important difference between the executive of Great Britain and of the United States ; the acts of the former being considered as those of his advisers, who alone are responsible therefor, while the acts of the advisers of the American executive are con- sidered as directed and controlled by him." 1 The Pres- ident appoints as members of his Cabinet persons who agree in his own political views, and they are not ex- pected to resign merely because the opposition party is in majority in Congress. It has frequently occurred that the President's " friends " in one or both houses of Congress have been in a minority for a considerable period. 1 Cooley's BUckstone, Commentaries, Bk. I. 231, n. 6. 172 SOURCES OF THE CONSTITUTION. chap. It is noteworthy that while the English sovereign has lost influence in consequence of cabinet control, the Pres- ident of the United States has not only maintained his power in time of peace, but demonstrated in time of war that it can rise, as it did in the administration of Lincoln, to a height approaching dictatorship. Some English writers, notably Mr. Walter Bagehot, have criticised this want of a true cabinet system in the Constitution of the United States. Mr. Bagehot remarks : " The ancient theory holds, that the queen is the execu- tive. The American Constitution was made upon a most careful argument, and most of that argument assumes the king to be the administrator of the English Constitu- tion, and an unhereditary substitute for him, viz. a Presi- dent, to be peremptorily necessary. Living across the Atlantic and misled by accepted doctrines, the acute framers of the Federal Constitution, even after the keen- est attention, did not perceive the prime minister to be the principal executive of the British Constitution, and the sovereign a cog in the mechanism. There is, indeed, much excuse for the American legislators in the history of the time. They took their idea of our Constitution from the time they encountered it. But in the so-called government of Lord North, George III. was the govern- ment. Lord North was not only his appointee and his agent ; the minister carried on a war which he disap- proved and hated, because it was a war which his sov- ereign approved and liked. Inevitably, therefore, the American Convention believed the king, from whom they vi. THE AMERICAN- EXECUTIVE. 173 had suffered, to be the real executive, and not the min- ister, from whom they had not suffered." J There are undoubted evils in the American system, with its possibility — which more than once has become fact — of detriment to public interests through conflict between the executive and the legislature. But on the whole, Americans, with their democratic tendencies, owe very much of the stability of their government to the weakness of their legislature and the strength of their executive. Had Congress possessed the power of Par- liament to alter constitutional principle itself, by a ma- jority vote at any session, and had the Cabinet controlled the President as the English Cabinet does the sovereign, the American commonwealth very probably might have been wrecked in its constructive period, or in passing through the storms of later time. The presidency is justly regarded by Americans as one of the most valuable creations of the Constitution of 1787. And the fact that the office is rooted in the past institutions of the race is not only the explanation of its existence, but a real, even though unrecognized, cause of its hold on the national heart. The observations of Sir Henry Maine in this connec- tion form too fitting a conclusion of the consideration of the subject to be omitted. " On the face of the Con- stitution of the United States the resemblance of the President of the United States to the European king, and especially to the King of Great Britain, is too obvi- 1 English Constitution, 126. 174 SOURCES OF THE CONSTITUTION. chap. ous for mistake. The President has, in various degrees, a number of powers which those who know something of kingship in its general history recognize at once as pecul- iarly associated with it, and with no other institution. The whole executive power is vested in him. He is commander of the army and navy. He makes treaties with the advice and consent of the Senate, and with the same advice and consent, he appoints ambassadors, min- isters, judges, and all high functionaries. He has a qualified veto on legislation. He convenes Congress when no special time of meeting has been fixed. It is conceded in the Federalist that the similarity of the new presidential office to the functions of the British king was one of the points on which the opponents of the Constitution fastened. Hamilton replies to their argu- ments sometimes with cogency, sometimes, it must be avowed, a little captiously. . . . But he mainly relies on the points in which the President differs from the king on the terminability of the office, 1 on the participa- 1 The Due de la Rochefoucauld in a letter to Franklin, in 1789, expresses surprise that, having in mind the efforts to restrain the powers of the French monarch, Americans should have given such great scope to the functions of the President, especially to one whose re-election for life was possible. It is true that the un- written constitution has now come to limit the President to a single re-election. But as the unwritten constitution is the result of custom merely, custom can change it. In fact, the custom was questioned so recently as the time of Grant, when a strong effort was made to give him a "third term.' - The only real limit to the continuation of a given President in power is the will of the people. And history shows that nations undergo changes in funda- vi. THE AMERICAN EXECUTIVE. 175 tion of the Senate in the exercise of several of his powers, on the limited nature of his veto of bills passed by Congress. It is, however, tolerably clear that the mental operation through which the framers of the Amer- ican Constitution passed was this : they took the King of Great Britain, went through his powers, and restrained them whenever they appeared to be excessive, or un- suited to the circumstances of the United States. It is remarkable that the figure they had before them was not a generalized English king, nor an abstract constitu- tional monarch ; it was no anticipation of Queen Victoria, but George III. himself, whom they took for their model. Fifty years earlier, or a hundred years later, the English king would have struck them as in quite a different light. . . . Now the original of the President of the United States is manifestly a treaty- making king actively influ- encing the executive government. Mr. Bagehot insisted mental opinion in the course of ages. Already a most intelligent portion of the community advocate a constitutional amendment to make the presidential term of office longer than four years. Length of term has so many arguments in its favour that, if the danger of it is not keenly feared, public opinion is likely, sooner or later, to move in such a direction. The Americans are a practical people, and mere fear of danger will not be sufficient to keep them from whatever they come to regard as a practical good. They apparently feel that they are able to cope with dangers, when dangers really come. There can be small doubt that had Wash- ington not declined, his " re-election for life," to which Rochefou- cauld refers, would have been "possible." And should another arise like him — some great hero such as history occasionally gives to nations — there is nothing to prevent his " re-election for life," so far as the Constitution is concerned. 176 SOURCES OF THE CONSTITUTION. chap. that the great neglected fact in the English political system was the government of England by a committee of the legislature, calling themselves the Cabinet. This is exactly the method of government to which George III. refused to submit, and the framers of the American Con- stitution take George III.'s view of the kingly office for granted. They give the whole of the executive govern- ment to the President, and they do not permit his minis- ters to have a seat or speech in either branch of the legislature. They limit his power, and this not, how- ever, by any contrivance known to modern constitution- alism, but by making the office of President terminable at intervals of four years. If Hamilton had lived a hun- dred years later, his comparison of the President with the king would have turned on very different points. He must have conceded that the republican functionary was the more powerful of the two." x 1 Maine, Popular Government, 211-214. "The President is, beyond doubt, the English king, modified by the necessities of a state of things in which hereditary succession was out of the question, and in which even a life term of office would have awakened the greatest jealousy." — Freeman, The Eng- lish People in its Three Homes, 375. "The organization of the executive department of the new government was attended with great difficulty. In the teeth of the prevailing prejudice against monarchy, it was no easy task to devise an acceptable scheme through which the federal chief magistrate could be clothed with the constitutional attributes of an English king. And yet that result was substantially accomplished. Although the President was simply a magistrate to be obeyed within the range of his powers, and personally liable to impeachment if he overstepped them, still he was endowed with as much, if not more, VI. THE AMERICAN EXECUTIVE. 177 The foregoing may appear strong language. But the essential truth must be admitted. It will not do to contend in opposition to this truth, that certain powers of the American executive are common to the executives of many nationalities, for the American has developed from its original through distinctly traceable channels. Nor will it be sufficient to insist upon the many dif- ferences between the English and American executives, for the points of agreement are none the less real. Though the President lacks the distinguishing heredity and pageantry of royalty, yet the characteristic powers he holds were held before him by the executive of the colonies, and of the home land. " Assuming that there was to be such a magistrate, the statesmen of the Con- vention, like the solid, practical men they were, did not try to construct him out of their own brains, but looked to some existing models. They therefore made an en- larged copy of the State governor, or, to put the same thing differently, a reduced and improved copy of the English king." 1 real power than was possessed even then by that dreaded original. The elective principle, it is true, was substituted for hereditary right, a. definite term of office was prescribed, and all the pomp and pageantry of power was sternly cut off, and yet the real resem- blance which remained between the two national chiefs was too close to escape the enemies of the Constitution, who bitterly assailed it on that ground." — Taylor, Origin and Growth of ^English Con- stitution, 69. 1 Bryce, American Commonwealth, I. 36. CHAPTER VII. THE JUDICIARY. THE English sovereign anciently exercised judicial functions which, by an evolutionary process, have gradually come to be separated from his executive func- tions, and deputed to a permanent body of judges, appointed by him, but independent of his direction. During the Saxon period, the kings decided cases which otherwise had failed in obtaining settlement, and after the Norman Conquest they continued to administer justice in person. 1 William the Conqueror, whenever present in England, held great courts of justice at Christmas, Easter, and Whitsuntide. To William Rufus, the barons recommended mercy in the sentence of minor criminals in 1096. Henry I. summoned Robert of Beleseme before his court, charged with treason under forty-five articles; and other cases, criminal and civil, are recorded of him. Some of the sayings of Henry II. 1 Even queens sat in court in early Norman times. Queen Ma- tilda, consort of the Conqueror, Queen Maud, consort of Henry I., and the quees consort of Henry III., are recorded as having done so. Heming, 512; Hist.Mon. Abingd., II. 116, Rolls Ser.; Biglow, Placita Anglo-Normannica, 99; Spence, Equit. Jurisdiction, IOI, n. 178 chap. vii. THE JUDICIAR Y. 179 on the seat of judgment have come down to us. 1 In- stances of personal decisions are narrated of John, Henry III., Edward I., and Edward II. But royal hearings, always and necessarily rare, gradually ceased. Edward IV. visited the Court of King's Bench in person to observe its procedure ; in which, however, he did not share. 2 When James I. attended a trial, and desired to take part, he was informed by the judges, that he could not deliver an opinion. 3 And the constitutional principle has long since been recognized, that the sover- eign, even though present, is not entitled to " determine any case, but by the mouths of his judges, to whom he has committed the whole of his judicial authority." 4 1 A defendant alleged, in a case tried before him in 1454, soon after his obtaining the crown, that a charter of Henry I., placed in evidence, had been improperly gotten. "Per oculos Dei," ex- claimed the king, taking the charter into his own hands, " si cartam heme falsam comprobare possess, lucrum mille librarum mihi in Anglia conferres." Walter, Abbott of St. Martin of Battle -v. Gilbertde Balliol : Chron. Monasterii de Bello, 106; Biglow, Placita Anglo-Normannica, 175. In a case over a land franchise between Baldwin, Archbishop of Canterbury, and the Abbot of St. Edmund, conflicting charters were presented; upon which the puzzled mon- arch exclaimed, " Nescio quid dicam : nisi ut cartae ad invicem pugnent." The abbot offering to submit the contention to the verdict of the counties of Norfolk and Suffolk, and the archbishop declining the offer, the king arose in indignation, and left the court, with the words : " Qui potest capere capiat. " Archbishop of Can- terbury v. Abbot of St. Edmund, circ. 1186; Chron. Jocelin de Brakelonda, 37, pub. Camden Soc; Biglow, Placita Anglo-Nor- manica, 238. 2 Stow, Chronicles, 416. 3 Blackstone, Commentaries, III. 41. 4 Coke, 4th Inst, 73. 180 SOURCES OF THE CONSTITUTION. chap. The national legislature of England also, as we have seen, possessed judicial powers. 1 And by the changes of centuries it has come to share these with a variety of courts, though preserving the supreme jurisdiction pertaining to the House of Lords. The Witenagemot transmitted its judicial functions to the Norman Great Council, the Curia Regis. But at least from the time of Henry I., an inner body — an offshoot from the larger, yet taking to itself the name Curia Regis 2 — ad- ministered judicial and financial affairs, under the king or his deputy, the chief justiciar. 3 Judges made circuits 1 The Codex Diplomaticus prints a very extended list of charters recording the results of trials by the Witenagemot. The docu- ments give very minute information as to the nature, process, par- ties, and causes, with place and date of the gemot at which each trial was held and the names of those who presided. 2 Hallam {Middle Ages, II. 423) refers to the confusing applica- tion of the term Curia Regis. It was used to designate (1) The Commune Concilium, or National Council of the realm, the Witenagemot in a feudalized form. (2) The Ordinarium Con- cilium, the perpetual or select council for judicial and adminis- trative purposes. (3) The Court of King's Bench, growing out of the limited tribunal separated from this last by Henry II., in 1 1 78, and soon after acquiring exclusively the denomination " Curia Regis." 8 " As the highest judicial tribunal in the realm, the Curia Regis consisted of the king, sitting to administer justice in person, with the advice and counsel of those vassals who were members of the royal household and of such others as were, on account of their knowl- edge of law, specially appointed as judges. In the absence of the king his court was presided over by the justiciar, who was at all times the supreme administrator of law and finance. . . By virtue of special writs, and as a special favour, the king could at his pleasure vii. THE JUDICIARY. 181 of the kingdom, principally for fiscal, but also for judicial, purposes ; and the local courts of each county — them- selves outgrowths of the old folkmoots — were thus brought into connection with the national tribunals. 1 call up causes from the local courts to be heard in his own court according to such new methods as his advisers might invent. Through the issuance of these special writs, the king became prac- tically the fountain of justice; and through their agency the new system of royal law, which finds its source in the person of the king, was brought in to remedy the defects of the old, unelastic system of customary law which prevailed in the provincial courts of the people." — Origin and Growth of English Constitution, 245, 246. See Biglow, History of Procedure in England; Reeves, History of English Law, etc. 1 Taylor has admirably condensed the facts. " In the course of the assessment and collection of the revenue, which was the chief work of the Curia as a financial body, local disputes so constantly arose that it became necessary to send detachments of justices to adjust the business of the exchequer in each shire. As early as the reign of Henry I., officers of the exchequer were frequently sent through the country to assess the revenue; and in the reign of his grandson, Henry II., this custom was enforced with systematic regularity. The justices while thus engaged in provincial business sat in the shiremoots, where judicial work soon followed in the path of their fiscal duties. In 1 1 76 the kingdom was divided into six circuits, to each of which were assigned three justices, who are now for the first time given in the Pipe Rolls the name of Justitiarii Itinerantes. After several intermediate changes in the number of the circuits, it was at last provided by Magna Charta that two jus- tices should be sent four times each year into each shire to take the assizes of novel disseisin, mort d'ancester, and darrien presentment. The provincial visitations of the justices from the exchequer, whose primary object was financial, thus led to the establishment of those judicial visitations which have ever remained an abiding feature in English judicature. Through these visitations was established that 1S2 SOURCES OF THE CONSTITUTION. chap. This lesser Curia Regis in time became divided into three sections, which, in the latter part of the reign of Henry III., emerged as the distinctive courts of Ex- chequer, Common Pleas, and King's Bench, each charged with its own portion of business. The hearing of excep- tional cases was still reserved to the inner council, and through the chancellor's relation to such cases eventually arose the Court of Chancery. 1 The council passed its vitally important connection between the strong central system of administration embodied in the Norman Curia and the ancient sys- tem of local freedom embodied in the Old English shiremoots." — Origin and Growth of the English Constitution, 247, 248. Stubbs says : " The visits of the itinerant justices form the link between the Curia Regis and the shiremoot, between royal and popular justice, between the old system and the new. The courts in which they preside are the ancient county courts, under new conditions, but substantially identical with those of the Anglo- Saxon times." — Constitutional History of England, I. 678. The itinerant justices were for a long time active in extorting money from the people for the king's use. In 1242, at a great council assembled by Henry III., the barons complained, "Non cassaverunt justitiarii itinerantes itinerare per omnes partes. Angliae tam de placitis forestae quam de omnibus aliis placitis, ita quod omnes comitatus Angliae et omnia hundreda civitates et burgi, et fere omnes villae graviter amerciantur; unde solummodo de illo itinere habet dominus rex vel habere debet maximam summam pecuniae, si persolvatur et bene colligatur. Unde bene dicunt quod per ilia amerciamenta et per alia auxilia prius data, omnes de regno ita gravantur et depauperantur quod parum aut nihil habent in bonis." — Matt. Paris, 582. 1 " The chancellor, who at a later period entered into many of the rights and dignities of the justiciar, appears in history very much earlier. The name, derived probably from the cancelli, or screen behind which the secretarial work of the royal household vii. THE JUDICIARY. 183 powers on to the Privy Council, which continues its higher jurisdiction. 1 And thus judicial functions of the legislature, actively exercised by what was at first a sort of standing committee, came to be subdivided and put in operation through a gradually evolved system of courts, — the legislature itself continuing to exer- cise justice in what is now the House of Lords, suc- cessor to the Witan. 2 The judicial action of both the Privy Council and the House of Lords is taken in our was carried on, claims a considerable antiquity; and the offices which it denotes are various in proportion. The chancellor of the Carolingian sovereigns, succeeding to the place of the more ancient referendarius, is simply the royal notary; the archi-cancellarius is the chief of a large body of such officers associated under the name of the chancery, and is the official keeper of the royal seal. It is from this minister that the English chancellor derives his name and function." — Stubbs, Constitutional History of England, I. 398, 399. See also Waitz, Deutsche Verfassungs-Geschichte, II. 409. For etymology of the word " chancellor," see Campbell, Lives of the Lord Chancellors, I. 1, 2. 1 " The original tribunal, the king's ordinary council, retained its undiminished powers throughout, changing at various times and throwing off new offshoots, such as the Court of Star Chamber, until it has reached our own time in the form of the Judicial Com- mittee of the Privy Council." — Select Charters, 24. 2 "We must not forget," says Freeman, "that our judicial and parliamentary institutions are closely connected, that both spring out of the primitive assemblies, that things which now seem so unlike as our popular juries and the judicial powers of the House of Lords are in truth both of them fragments of the judicial powers which Tacitus speaks of as being vested in those primitive assem- blies. It was only step by step that the functions of judge, juror, witness, and legislator became the utterly distinct functions which they are now." — Growth of English Constitution, 84. 184 SOURCES OF THE CONSTITUTION. chap. day, not by those bodies as a whole, but by special judi- cial personages, — • in the former by the " Judicial Com- mittee," composed of judges of the several courts, and in the latter by the " law lords," i.e. peers who are or have been on the bench. Thus by slow transfer of power originally belonging to both the executive and the legislature, the national judiciary finally emerged into definite being, and became a charac- teristic feature of the English Constitution. The system, at least in its leading and essential elements, concerns the present inquiry. For from it the American judicial system — with differences of detail — has directly come. The process of derivation has been first through the crea- tion and action of the colonial courts and judges, and the application of English law and procedure on American soil ; secondly, through the direct contact of the colonies with the English tribunals, and especially with the Privy Council as an imperial supreme court for all Americans down to 1776; thirdly, through the legal literature of England, which has ever been regarded and utilized by the American bar as its own ; and lastly, through adap- tation from English models, begun in the Philadelphia Convention, and since continued by Congress in dealing with Article III. of the Constitution. 1 1 Taylor notes this well-known identity of the American and English judicial systems. " So far as [the American] judicial organization is concerned, there has been but a slight departure from the ancient original. Such differences as do exist are rather differences of detail than of organic structure. In both systems the unit of local judicial administration is the county, where all causes, vii. THE JUDICIARY. 185 Not only is the judiciary system of the United States derived from that of England, but even the co-ordinate and independent place accorded to it in the threefold division of government, and so often thought a novelty, is taken from English and colonial antecedents. Refer- ring to this, Sir Henry Maine observes : " It may be confidently laid down that neither the institution of a Supreme Court, nor the entire structure of the Constitu- tion of the United States, were the least likely to occur to anybody's mind before the publication of the Esprit des Lois. . . . The Federalist regards the opinions of Montesquieu as of paramount authority, and no opinion had more weight with its writers than that which affirmed the essential separation of the executive, legislative, and judicial powers. The distinction is so familiar to us, except equity and probate causes, are tried in the first instance according to the course of English customary law, subject to, review in a central appellate court modelled after the great courts at West- minster. It is not the ancient county court, however, that is the local centre of judicial administration. In America, as in England, the ancient county court is overshadowed by the itinerant, or circuit court, held periodically in every county by the itinerant or circuit judge sent to preside in local tribunals by State authority. In every assize or circuit court held where English law prevails, the jury of presentment and the trial jury enter as component parts into the structure of a tribunal which, in its modern form, is the special possession of the English race. Each colony started out by adopting the whole body of English statutory and customary law, so far as its principles could be adapted to their changed social and political conditions. By a perusal of the colonial codes, it is possible to trace the beginnings of the great work of adaptation, which has not yet eliminated all the obsolete elements of the ancient system." — Origin and Growth of the English Constitution, 47, 48. 186 SOURCES OF THE CONSTITUTION. chap. that we find it hard to believe that even the different nature of the executive and legislative powers was not recognized till the fourteenth century; but it was not till the eighteenth that the Esprit des Lois made the analysis of the various powers of the state part of the accepted political doctrine of the civilized world. Yet, as Madison saw, Montesquieu was really writing of England, and contrasting it with France. . . . The fact was, that in the middle of the eighteenth century it was quite impossible to say where the respective prov- inces of the French king, and of the French parliament in legislature, and still more of the same authorities in judicature, began and ended. To this indistinctness of boundary Montesquieu opposed the considerable, but yet incomplete, separation of the executive, legislative, and the judicial powers in England, and he founded on the contrast his famous generalization." 1 But although this influence of Montesquieu in promot- ing the independent relation of the judiciary in the American Constitution is unquestionable, the Philadel- phia Convention had before its eyes in this, as in other matters, the colonial adaptation of English usage then ex- isting in the States of which the new nation was composed. And the testimony of the Federalist is exceedingly ex- plicit on this point. For after stating reasons for an independent judiciary, it continues : " These considera- tions teach us to applaud the wisdom of those States which have committed the judicial power in the last 1 Pabular Government, 218-220. vii. THE JUDICIARY. 187 resort, not to a part of the legislature, but to distinct and independent bodies of men. Contrary to the supposi- tion of those who have represented the plan of the Con- vention in this respect as novel and unprecedented, it is but a copy of the constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Vir- ginia, North Carolina, South Carolina, and Georgia, and the preference which has been given to these models is highly to be commended." 1 When the Convention assembled in Philadelphia, State courts were in vigorous operation, but nothing had yet been done to supply the place formerly occupied by the English Privy Council as a supreme court of appeal common to all the colonies. Under any truly national constitution a national judicature was a necessity, not only for ordinary affairs, but also for those national matters which in the days of colonial dependence had been dealt with by the courts of England. What the Convention did, was to add to the State courts one national supreme tribunal, and there it stopped. Other classes of national courts were contem- plated, but the creation of them was left to Congress. Article III. of the Constitution reads : " The judicial power of the United States shall be vested in one Supreme Court, and in such minor courts as the Con- gress may, from time to time, ordain and establish." 2 1 Federalist, No. 8r. 2 Constitution of the United States, Art. III. Sec. I. Without discussion, the committee of the whole, in the Philadelphia Conven- 188 SOURCES OF THE CONSTITUTION. chap. The present national courts of the United States are, therefore, the creation of the Constitution directly, in the instance of the Supreme Court, and indirectly, in that of the minor courts established under the provisions of Article III. These minor courts may be changed or added to by Congress as need arises. They consist at present of the circuit courts of appeal, the circuit and district courts, and the Court of Claims, as national tribunals, and the courts of the District of Columbia and of the territories as local courts under national control. The State courts are also employed for such national cases as they are capable of dealing with. By the pres- ent condition of the law, many cases within reach of the national judicial power are left wholly to the State courts, while in other cases, the State courts are allowed a juris- diction concurrent with that of the Federal courts ; their judgments on questions of Federal law being subject to final review in the national Supreme Court. The full purpose of the Federal jurisdiction is met, if the case, tion, voted for a national judiciary to be composed of one Supreme Court and inferior courts. Later on, dissatisfaction was expressed, that in view of the fact that the States already possessed a full sys- tem of inferior courts, there should be forced upon them, in addition, a body of national inferior tribunals. Madison urged, however, that an effective judiciary establishment for the nation, commensurate with the national legislative authority, was essential. In this posi- tion he was sustained by Wilson and Dickinson. But the original motion was stricken out by a vote of six States to four. A compro- mise suggested by Dickinson was then agreed to, providing for the establishment of such minor courts as Congress should decide upon. — See Elliot, Debates, V. 155, 159, 160. vii. THE JUDICIARY. 189 though heard first in a State court, may be removed, at the option of the parties, for final decision in the Federal courts. Congress has consequently left the parties at liberty, with few exceptions, to bring their suits in the State courts, no matter what the questions involved. But at the same time, it has protected the Federal authority, by providing for a transfer to the Federal courts, either before or after judgment, of all cases to which the Federal judicial power extends. 1 Not only do the State courts — successors of the colonial courts — thus share in the national judicature, but the national courts apply State law whenever appli- cable to cases coming before them. And though the nation itself has no common law, its courts constantly administer the English common law of the States where it is proper to do so. In this way the law applied by the national courts is, first of all, that of the Constitu- tion and of enactments of Congress, and secondly that which has grown up from English antecedents in the original thirteen States, or which has been adopted in the later States, formed more or less closely upon the older models. The jurisprudence regulating the 1 As Robinson expresses it, " There is no hard and fast line divid- ing the jurisdiction of the Federal courts from that of the State courts." — Publications of the American Academy of Political and Social Science, No. 9, p. 236. This striking peculiarity of the American judicial system — its flexibility — seems to have been wholly missed by De Tocqueville. He admits " ce qu'un etranger comprend avec le plus de peine aux Etats-Unis, c'est l'organisa- tion judiciare." — Democratic en Amerique I. 1 63. 190 SOURCES OF THE CONSTITUTION. chap. procedure and moulding the decrees of the American Supreme Court is English jurisprudence, and it has thus become a new source of both American and English law. The system of inferior Federal courts is essentially a reproduction of the English itinerant system of judica- ture. In both civil and criminal cases the Federal courts proceed according to the English customary law, while in equity and admiralty causes they cling with like tenacity to the general body of English jurispru- dence. 1 An impression that the Supreme Court was created to be the " guardian " of the Constitution, by inter- preting it, has often called forth admiration for what has been regarded a most novel contrivance of the Philadelphia Convention. Even so acute a writer as Sir Henry Maine assures us, that "there is no exact precedent for it either in the ancient or in the modern world." 2 Yet words describing such a function of the court are not to be found in the Constitution itself, and the procedure which really exists is neither of recent date nor without historical precedent. In deciding constitu- tional questions, the Supreme Court interprets the law in accordance with principles that have long governed the courts of England. For when an English judge finds conflict between an act of Parliament and a judicial decision, he sets aside the decision, as of an authority inferior to that of the act ; and if two parliamentary 1 See Origin and Growth of the English Constitution, 74. 2 Popular Government, 218. vn. THE JUDICIARY. 191 acts conflict, the earlier is set aside as superseded by the later one, — the court interpreting the law, simply by determining what is law as distinguished from what is not. The range of this English usage was somewhat amplified in the colonies, owing to the fact, that instead of Parliament, the colonial courts had legislatures to deal with, which acted, in most instances, under written charters limiting their powers, — as also under the general domi- nation of the home government. The colonial judiciary did not hesitate to adjudge a local statute invalid, if its enactment could be shown to have exceeded powers conferred by charter, — and the Privy Council, in the capacity of a supreme court for the colonies, decided in like manner conflicts between laws. When State constitutions succeeded to the charters, the process was continued by the State courts in cases showing con- flict between statutes and the new constitutions judi- cially interpreted. 1 The national government, with a constitution of its own, created an element of superior law, in conflict with which not only State but national 1 The first cases after the Revolution, in which legislative enact- ments were declared unconstitutional were those of Trevett v. Weeden, in 1786, and Bayard v. Singleton, in 1789. The first mentioned was decided in Rhode Island, where the colonial char- ter still did service as the State constitution. Cooley observes, regarding it, that it " is worthy of note that the first case in which a legislative enactment was declared unconstitutional and void, on the ground of incompatibility with the constitution of the State, was decided under one of these royal charters." — Constitutional Limitations, 36, 11. I. 192 SOURCES OF THE CONSTITUTION. chap. enactments of lesser authority are nullified. 1 All that the judiciary does in England, and all that it does in the States, and in the courts of the United States, is to uphold the authority of what it decides to be the higher law, as against all lesser laws or judicial decisions. What therefore has been supposed to be the most unique feature of the American Supreme Court is really only another adaptation from the past, and rests upon colonial and English precedents. 2 1 " Sir Henry Maine speaks of the Supreme Court as a ' virtually unique creation of the founders of the Constitution.' But it is . . . unique rather in position than in form. There were supreme courts in many of the States, forming a separate branch of govern- ment, with judges chosen for good behaviour, and, in one State at least, in the manner prescribed by the Federal Constitution. Even in respect to constitutional importance, we find a precedent in the State courts; for Gerry, in maintaining that ' the judiciary would have a sufficient check against encroachments on their own depart- ment by their exposition of the laws, which involved a power of deciding on their constitutionality,' reminded the Convention that 'in some States the judges had actually set aside laws as being against the constitution.' " — Publication! of the American Academy, No. 9, p. 241. 2 " There is a story told of an intelligent Englishman who, having heard that the Supreme Federal Court was created to pro- tect the Constitution, and had authority given it to annul bad laws, spent two days in hunting up and down the Federal Constitution for the provisions he had been told to admire'. No wonder he did not find them, for there is not a word in the Constitution on the subject. . . . The so-called ' power of annulling an unconstitutional statute ' is a duty rather than a power, and a duty incumbent on the humblest State court, when a case raising the point comes be- fore it, no less than on the Supreme Federal Court at Washington. When, therefore, people talk, as they sometimes do, even in the vn. THE JUDICIARY. 193 The judges of England receive their appointment from the sovereign. Judges of the Supreme Court of the United States are appointed by the President, with consent of the Senate, under the provisions of Article II. Section 2, and judges of inferior national courts in like manner, under the general clause of the same arti- cle, which empowers the executive to name " all other officers of the United States whose appointments are not herein otherwise provided for." l In the Phila- delphia Convention a proposition at first prevailed that the Supreme Court judges should be appointed by the Senate, but at a later session, upon the report of a com- mittee, the present provision was adopted by unanimous vote. 2 The States, in more recent times, have made the United States, of the Supreme Court, as 'the guardian of the Constitution,' they mean nothing more than that it is the final court of appeal, before which suits involving constitutional questions may be brought up by the parties for decision. In so far the phrase is legitimate. But the functions of the Supreme Court are the same in kind as those of all other courts, State as well as Federal. Its duty and theirs is simply to declare and apply the law; and where any court, be it a State court of first instance, or the Federal court of last instance, finds a law of lower authority clashing with a law of higher authority, it must reject the former, as being really no law, and enforce the latter." — American Commonwealth, I. 246, 247. 1 Constitution of the United States, Art. II. Sec. 2. 2 After the discussion in the Philadelphia Convention over the mode of appointing judges, and a preliminary decision that the Senate should have the power (see Elliot, Debates, V. 188), Mr. Gorham " suggested that the judges be appointed by the executive, with the advice and consent of the second branch, in the mode 19+ SOURCES OF THE CONSTITUTION. chap. office of judge depend very generally upon election by the legislature, or even by the people. But the national judges are still appointed by the executive. By legal theory, as we have seen, English judges repre- sent the sovereign in the dispensation of justice, and accordingly their commissions were formerly limited to such terms of office as the crown might prescribe. This control of tenure proved to be dangerous to public liber- ties, through liability of miscarriage of justice from political interest ; and there were occasionally shameful compliances by judges with the wishes of the king, and involving flagrant violation of the rights of the subject. In the time of Lord Coke, Barons of the Exchequer were appointed to hold office during good behaviour, i.e. practically for life, — other judges still holding dur- ing royal pleasure. Until the accession of William and Mary, it was in the power of the sovereign to select which tenure he might prefer, — durante bene placito, or quamdiu bene se gesserint. The Act of Settlement of that reign stipulated, "that . . . judges' commissions be made quamdiu se bene gesserint, and their salaries ascertained and established, but upon the address of both houses of Parliament, it may be lawful to remove them." L Commissions were still held to expire at the prescribed by the constitution of Massachusetts." This was finally agreed to, as having been " ratified by the experience of a hundred and forty years." See Elliot, Debates, V. 328, 330; Constitution of Massachusetts, 1780, Pt. II. Ch. II. Sec. 1, Art. IX. 1 13 Will. III. u. 2, III. 7. Campbell says: "It was not until after the Revolution of 1688, which placed Dutch William on the vn. THE JUDICIARY. 195 king's death. But one of the earliest acts of George III. was to complete the independence of the judiciary by providing that judges should remain in office during good behaviour, notwithstanding any demise of the crown, and that their full salaries should be secured during the continuance of their commissions. In the Constitutional Convention at Philadelphia it was proposed to make judges removable by the Presi- throne, that any permanent check was placed upon the power of removal; and it was not until the reign of George III. that the present system was introduced, under which judges hold office during good behaviour. All this was settled in the Dutch republic two centuries before. . . . The supreme judges of the High Court of Appeals at The Hague, nominated by the Senate, and confirmed by the Stadtholder, executed their functions for life, or so long as they conducted themselves virtuously in their high office." — Puri- tan in Holland, England, and America, II. 450. However this be, the fact remains, that America received these matters from and through England, whether "William III. is concerned or George III. As to the action of George III., see King's Message, March 3d, 1761; I Geo. III. c. 23; Walpole, Memoirs, I. 41; Cook, History of Party, II. 400. A precedent in favour of the establishment of an independent judiciary long before the time of "Dutch William," is the statute of Alfonso V. of Aragon, in 1442, providing that judges should remain such for life, they being removable only on sufficient cause by the king and Cortes combined. See Prescott, History of Ferdinand and Isabella, I. 108, Intro. Sec. 2, p. 74, 5th ed., Lond. 1849. Was the Dutch usage influenced by Spain, through Spanish relation to the Netherlands? We have suffi- cient light on the direct cause of action in the Philadelphia Convention, from the remark of Hamilton in the Federalist, No. 78, in which he says, speaking of tenure of judges during " good behaviour," that it was a thing " conformable to the most approved of the State constitutions." 196 SOURCES OF THE CONSTITUTION. chap. dent upon the application of both houses of Congress. The circumstances, however, were not the same as those which gave rise to the similar provision in the Act of Settlement, and the proposition failed of adoption. The Constitution of the United States reads: "The judges both of the superior and inferior courts shall hold their offices during good behaviour, and shall at stated times receive for their services a compensation, which shall not be diminished during their continuance in office." 1 1 Constitution of the United States, Art. III. Sec. I . The Feder- alist, No. 79, notes that " in the general course of human nature, a power over a man's substance amounts to a power over his will." Chief Justice Taney in a letter of February 15, 1863, objected to a national tax applying to justices of the Supreme Court, because it was an unconstitutional diminution of their salaries. This letter was recorded in the minutes of the Supreme Court by an order of the court of March 10, 1863. See Tyler, Life of Taney, 432. Hamilton, in the Federalist, No. 78, points out that " the complete independence of the courts of justice is peculiarly essential in a limited constitution." Story declares, with reference to compensa- tion, " without this provision the other, as to tenure of office, would have been utterly nugatory, and, indeed, a mere mockery." — Com- mentaries on Constitution of the United States, II. 424, § 1628. Tucker, treating of this clause of the Constitution says : " Whatever has been said by Baron Montesquieu, De Lolme, or Judge Black- stone, or any other writer, on the security derived to the subject from the independence of the judiciary of Great Britain, will apply at least as forcibly to that of the United States. We may go fur- ther. In England, the judiciary may be overwhelmed by a com- bination between the executive and the legislature. In America, ... it is rendered absolutely independent of, and superior to, the attempts of both to control or to crush it. First, by the tenure of office, which is during good behaviour; these words (by a long train of decisions in England, even as far back as the reign of vii. THE JUDICIARY. 197 In Section 2, Article III., of the Constitution, are de- scribed the powers of the national judiciary. "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority ; to all cases affecting ambassadors, other public ministers and consuls ; to all cases of admiralty and maritime jurisdiction ; to controversies to which the United States shall be a party ; to controversies between two or more States ; between a State and the citizens of another State ; between citizens of different States ; between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign states, citizens, and subjects. "In all cases affecting ambassadors, or other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original juris- diction. In all other cases before mentioned the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regula- tion, as the Congress shall make." 1 The very first words of this section, " the judicial power shall extend to all cases," imposes upon the national Edward III.) in all commissions and grants, public or private, im- parting an office, or estate, for the life of the grantee, determinable only by his death or breach of good behaviour. Secondly, by the independence of the judges in respect of their salaries, which can- not be diminished," etc. — Tucker's Blackstone, Commentaries, App. 353. 354- 1 Constitution of the United States, Art. III. Sec. 2. 198 SOURCES OF THE CONSTITUTION. chap. judges a mode of action which is of English origin. English courts decide the issue of actual disputes only, and never lay down a general proposition except as arising from a " case," brought before them for settle- ment. The success of the Supreme Court of the United States is largely a result of following this method of determining questions of constitutionality and unconsti- tutionality. The process is slower, but it is freer from chance of political pressure, and far less provocative of jealousy than would be the presentation of abstract and emergent political propositions to a judicial tribunal; and yet this latter process is what a European foreigner thinks of when he contemplates a court of justice decid- ing an alleged violation of a constitutional rule or principle. Thus also the rest of the same sentence of this second section of Article III. refers to legal usages of the mother-land: "The judicial power shall extend to all cases in law and equity, arising under the Constitu- tion, laws, and treaties of the United States, and treaties made or which shall be made under their authority." 1 1 Constitution of the United States, Art. III. Sec. 2. " The equity jurisdiction of the courts of the United States is independent of the local law of any State, and is the same in nature and extent as the equity jurisdiction of England from which it is derived." — Gordon v. Hobart, Sumner, II. 401. Mr. Justice Miller, of the United States Supreme Court, forcibly says : " Not only did the framers of the new Constitution follow as well as they might the general polity of the English system, but they evinced an ardent desire to preserve the principles which had been accepted as part of the general administration of the law among our vii. THE JUDICIARY. 199 Mr. Justice Story asks : " What is to be understood by ' cases in law and equity,' in this clause ? Plainly, cases at common law, as contradistinguished from cases in equity, according to the known distinction in the juris- prudence of England, which our ancestors brought with them upon their immigration, and with which all the American States were familiarly acquainted. Here, then, at least, the Constitution of the United States appeals to, and adopts the common law, to the extent of making it a rule in the pursuit of remedial justice in the courts of the Union. If the remedy must be in law, or in equity, according to the course of proceedings at the common law in arising under the Constitution, laws, and treaties of the United States, it would seem irresistibly to follow, ancestors. This is shown in many of the provisions of the Consti- tution. Among others, the article concerning the judicial powers of the new government, establishes its jurisdiction as extending to all cases in admiralty, and in law, and in equity, thus recognizing the English separation of these three classes of legal controversies as being governed by a separate jurisdiction. At least such has been the construction placed upon the instrument by the courts of the country without much question. It has been repeatedly decided that the jurisdiction in equity, which was a very peculiar one under the English system of legal administration, remains in the courts of the United States as it was at the time they separated from that country, and that one of the distinctive features of the difference between law and equity — namely, that at law there is a right to a trial by jury, and in equity there is none — has continued to the pres- ent day." — Lectures on Constitution, 488. Judge Cooley, referring to modern English usages, points to the effect of the jurisdiction acts of 1873 and 1875 ; and of change in usage in certain States of the American Union. Cooley's Blackstone, II. Bk. III. 454, n. 11. 200 SOURCES OF THE CONSTITUTION. chap. that the principles of decision, by which these remedies must be administered, must be derived from the same source. Hitherto such has been the uniform interpreta- tion and mode of administrating justice in civil cases in the courts of the United States in this class of cases." 1 The seemingly American characteristic of the jurisdic- tion of national courts over controversies between States, had its origin in the colonial custom, by which disputes between one colony and another — which frequently arose before the War of Independence — were adjudi- cated by the Privy Council. Such a case between Massa- chusetts and New Hampshire was settled by the Privy Council in 1679, and one between New Hampshire and New York in 1764. In the case of Pennsylvania v. Lord Baltimore, the jurisdiction involved was recognized by Lord Hardwicke in the most deliberate manner. And Blackstone thus states the law of the time : " Whenever a question arises between two provinces in America or elsewhere, as concerning the extent of their charters and the like, the king in his council exercises original juris- diction therein upon the principles of feudal sover- eignty." 2 It was to take the place of this former jurisdiction of the crown, that the Constitution provided, " In all cases ... in which a State shall be party, the Supreme Court shall have original jurisdiction." 3 1 Commentaries on the Constitution of the United States, II. 436. 2 Commentaries, I. 231. 3 Constitution of the United States, Art. III. Sec. 2. " In extend- ing the Federal judicial power to cases between two or more States, vii. THE JUDICIARY. 201 It may be said in general, that the subjects coming within the reach of the federal courts, and the method of dealing with them, are very largely of a character familiar to English law. Powers which inhere in the British, or were exercised in the colonial, courts, are put into operation by the present tribunals to the extent of their jurisdiction. Customary writs are issued. Forms and procedure bear abundant evidence of old moulding. In fact, notwithstanding elements of differentiation, the entire American judicial and legal system, both State and national, is so essentially and confessedly of English origin, that consideration in minute detail is superfluous. 1 Perhaps no proof could be more to the point, than that the Commentaries of Sir William Blackstone are still the Convention followed the example of the Articles of Confedera- tion, which, although establishing no courts, provided that the United States in Congress assembled should be the last resort on appeal in all disputes and differences between two or more States. " — Publica- tions of the American Academy, No. 9, p. 234. 1 Douglas Campbell {Puritan in ffolland, England, and America, I. 62) says of this : " As the colonies grew, their juris- prudence naturally developed with them, and after they became independent States, their development was much more rapid. New law was required to meet new conditions of society. Sometimes the want was supplied by enactments of the legislature, at others by what Bentham aptly called judge-made law, the creation of the courts. The result is, that the legal system of America has changed about as much in the last two centuries as the face of the country itself. In England, too, the same change has been going on, in much the same directions, and from the same causes." Yet even he admits (p. 63) : " England and America have, to-day, much the same legal principles." 202 SOURCES OF THE CONSTITUTION. chap. " the best book in which to take a comprehensive view of the rudiments of English and American law." * And this legal influence is not merely a thing of the past, but continuous. " It is one of the links which best serves to bind the United States to England. The interest of the higher class of American lawyers in the English law, bar, and judges is wonderfully fresh and keen. An English barrister, if properly authenticated, is welcomed as a brother of the art, and finds the law reports of his own country as sedulously read and as acutely criticised as he would in the Temple." 2 Referring to the next chapter, the provision in Article III. for trial by jury in criminal cases, we may consider the law of treason, which concludes the Article. Of the action of the Convention regarding this law, Story re- marks : " They have adopted the very words of the statute of treason of Edward III., and thus by implication, in order to cut off at once all chances of arbitrary con- structions, they have recognized the well-settled interpre- tation of these phrases in the administration of criminal law which has prevailed for ages." 3 The English judges originally were left to determine for themselves, by rules of the common law, somewhat vague in character, what was treason and what was not. Injustice often 1 Cooley's Blackstone, Commentaries, I., preface, p. v. This statement comes from the pen of the leading legal writer of the present day in the United States. " Bryce, American Commonwealth, II. 491. 8 Commentaries on the Constitution of the United States, II. 555, § 1799- vii. THE JUDICIARY. 203 resulted. And complaints and petitions were put forth from time to time by the House of Commons calling attention to the abuse. Finally, in 1352, a petition was presented, the royal reply to which, entitled " A Declara- tion which offences shall be adjudged treason," consti- tutes the statute. 1 This law of Edward III. was altered and enlarged in later reigns. And an amendment to it, referring to witnesses, which has been incorporated in the American Constitution, dates from 1552 in the time of Edward VI., when, in consequence of complaint from persons under trial, that they were unable to defend themselves, because not allowed to meet their accusers, it was enacted that no one should be indicted for treason in future, save on the testimony of two witnesses who should be brought into the presence of the accused at the time of his trial, unless he should willingly confess the charges. 2 The Constitution reads : " Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason 1 25 Edw., St. 5, c. z. The petition prayed that " whereas the king's justices in different counties adjudge persons indicted before them to be traitors for sundry matters not known by the commons to be treason, it would please the king by his council, and by the great and wise men of the land, to declare what are treasons, in this present Parliament." In later reigns the law of treason was often extended to offences not mentioned in this statute of Edward III., but to reduce the crime to the limits of the ancient statute was always a popular measure. With some modifications, this is the law at the present time. 2 5 and 6 Edw. VI. t. 11. 204 SOURCES OF THE CONSTITUTION. chap. unless on the testimony of two witnesses to the same overt act, or on confession in open court." 2 Article IV., which takes up the general subject of States and territories, in their relation to each other and to the Federal government, touches a variety of matters con- fessedly of English derivation ; and even the State system itself, which usually has been considered an American peculiarity, must be conceded to be only a natural and necessary outgrowth of the old political separation of colony from colony, and of union under the crown. Colony and State have remained the same in substance, whether the higher administration has been centred in London or in Washington. And the identical principle is still in operation in the clusters of colonies of Canada, South Africa, and Australia, and has its analogies in the general structure of the British empire. The concluding articles — the fifth, treating of amend- ments ; the sixth, detailing sundry matters of routine relating to the establishment of the Constitution itself; and the seventh, providing for the ratification of that instrument — need not be dwelt upon, save as to points 1 Constitution of the United Stdtes, Art. III. Sec. 3. " The in- terpretation of the phrases, ' levying war ' and ' adhering to their enemies,' is a matter 'wholly for the court. The court is, then, empowered to defend the individual against prosecutions for any extraordinary treasons which Congress might attempt to construct." Burgess, Political Science and Constitutional Law, II. 148. See also Hanauer v. Doane, United States Reports, 12 Wallace, 342; Ex parte Bollman v. Swartwout, United States Reports, 4 Cranch, 75; Carlisle v. United States, United States Reports, 16 Wallace, 147. vii. THE JUDICIARY. 205 which will come up in connection with kindred topics in • the next chapter. 1 1 Reference has already been made in this book to Douglas Campbell's Puritan in Holland, England, and America. The fact admitted by Mr. Campbell, that historians take a position entirely at variance with his, seems not to have deterred him from setting up a claim for Dutch influence in America; which claim, in most of its particulars, must continue to lack the support of histo- rians. A conspicuous feature, giving the key to the whole of his work, is an argument in the introduction, intended to demonstrate that American governmental institutions are not of English deriva- tion. He says : " Instead of those of the United States being derived from England, it is a curious fact, that while we have in the main English social customs and traits of character, we have scarcely a legal or political institution of importance which is of English origin, and but few which have come to us by the way of England." — I. II. In proof of this astonishing assertion he proceeds, after referring to certain religious and social matters, to illustrate by speci- fying characteristics of the American Constitution. Let us briefly look at these characteristics. (i) Mr. Campbell intimates, that as the English Constitution is unwritten, Americans could not have got a written constitution from England; and seems to imply that they therefore got it from the Dutch, who had a written compact in the Union of Utrecht, of which he says much. Of course, nowhere in his work does he show American continuity from this imagined Dutch original. And he wholly ignores the real origin of written constitutions in America; viz. the English charters granted by English sovereigns to English subjects. These latter, with the English political usage growing up under them, formed, as we have seen, the constitutions of colonial days. All the States save Connecticut and Rhode Island, framed the first State constitutions accordingly, — those two States retaining the old charters, even into the nineteenth century. The national Constitution, as a written document, is based on the written consti- tutions of the States, as these in turn were based on the written English charters. And the latter had their source in English trade charters, and not in any Dutch original whatsoever. 206 SOURCES OF THE CONSTITUTION, chap. vii. (2) He intimates that the American executive office is not of English derivation, because the President is a personal executive, and the English sovereign of to-day is controlled by a cabinet. In this he strangely confuses historical facts, and leaves altogether out of view the real evolution, through the colonial governorship and otherwise, from the older English kingship before the establish- ment of the Cabinet system. (3) He intimates that the American Congress is not of English derivation, because the House of Lords of to-day has powers differ- ing in some degree from those of the Senate, and the latter body is, in part, an executive or privy council; and because further a member of the House of Representatives is paid, and has a term of membership differing as to duration from that of a member of the House of Commons. Surely no serious answer need be accorded to arguments so trivial, in view of the fact of legislative evolution in organization, privileges, and power, traced in the foregoing Chap- ters III. and IV. (4) Mr. Campbell says that " above all in America . . . sits the Supreme Court to see that the Constitution ... is preserved intact. Its judges are appointed by the President and confirmed by the Senate, but they hold office for life or good behaviour." The fore- going chapter shows how far this can be claimed as proof that the American judicial system is not of English and Anglo-colonial evolution. He adds: "These features make up the peculiarities of the American Federal system, and differentiate it from other forms of government. All nations have an executive of some kind, most of them have judges and legislative bodies, so that in these general outlines there is nothing on which to base a theory of English origin. The question is whether our peculiar institutions, those distinctive of America, are derived from the ' mother-country.' " That is, of course, the sole question. And the aim of the present book — written before Mr. Campbell's appeared — has been to definitely settle the question in the affirmative, by the appeal to history. CHAPTER VIII. THE BILL OF RIGHTS. THE English common law, which lies at the basis of English and American liberties, is the growth of centuries, and its maxims breathe the very spirit of the race. It is that "law of the land," to which the Magna Charta of King John referred for the guarantee of personal rights; and its essential principles are interwoven with the Petition of Rights of Charles I., and the Bill of Rights and Act of Settlement of the Revolution of 1688. So far as applicable to American conditions, "it was brought over by our ancestors," says Chancellor Kent, "upon their first emigration to this country." 1 And the royal 1 " The common law of England, so far as it was applicable to our circumstances, was brought over by our ancestors upon their emigration to this country. The Revolution did not involve in it any abolition of the common law. It was rather calculated to strengthen and invigorate all the first principles of that law, suitable to our state of society and jurisprudence. It has been adopted, or declared in force, by the constitutions of some of the States, and by statute in others. And where it has not been so explicitly adopted, it is nevertheless to be considered as the law of the land, subject to the modifications which have been suggested, and to express legislative repeal." — Kent, Commentaries on American Law, II. 28. 207 208 SOURCES OF THE CONSTITUTION. chap. charters included it in their provision, that Englishmen in the colonies should be entitled to the same privileges as Englishmen at home. 1 Formal declarations of rights, drawn from the common law, were incorporated in the earliest colonial legislation. Plymouth Colony, in the first of these, enumerated, among other privileges, that justice should be impartially and promptly administered, with trial by jury, and that no person should suffer in life, limb, liberty, good name, or estate, but by due process of law. 2 Connecticut, in 1639, adopted an act closely similar. New York enacted, in 1691, that no freeman should be deprived of any rights, or liberties, or condemned, save by the judgment of his peers, or the law of the land ; that no tax should be levied except by act of the legislature in which the colonists 1 Kent summarizes the facts thus : " It was a provision in the charters of the Virginia settlers granted by James I. in I 606 and 1609, and in the charter to the colonists of Massachusetts in 1629; of the Province of Maine in 1639; of Connecticut in 1662; of Rhode Island in 1663; of Maryland in 1632; of Carolina in 1663; and of Georgia in 1732; that they and their posterity should enjoy the same rights and liberties which Englishmen were entitled to at home. Such privileges were implied by the law, without any express reservation. The like civil and religious privileges were conceded to New Jersey by the proprietaries in February, 1665." — Commentaries on American Law, 12th ed. II. 2, n. 2 " They insisted that they brought with them into this country the privileges of English freemen, and they defined and declared those privileges with a caution, sagacity, and precision that have not been surpassed by their descendants. Those rights were after- wards, in the year 1692, on the receipt of their new charter, reas- serted and declared." — Ibid. II. 2. viii. THE BILL OF RIGHTS. 209 were represented ; that trial by jury should be maintained, and that in all criminal cases there should be previous indictment by a grand inquest. Though the king re- pealed this act, another, of like import, was adopted in 1708. 1 Massachusetts, in 1641, promulgated a Body of liberties, the first paragraph of which reads : " No man's life shall be taken, no man's honour or good name shall be stained, no man's person shall be arrested, restrained, banished, dismembered, nor anyways punished, no man shall be deprived of his wife or children, no man's goods or estate shall be taken away or anyway endangered under colour of law or countenance of authority, unless it be by virtue or equity of some express law of the country warranting the same, established by the General Court and sufficiently published, or in case of the defect of the law in any particular case, by the Word of God, and in capital cases, or in cases concerning dismembering or banishment, according to that word to be judged by the General Court." In like manner, declaration of rights was made by the legislature of Virginia in 1624 and 1676 ; by the legislature of Pennsylvania in 1682 ; of Maryland in 1639 and 1650; and of Rhode Island in 1663; and also by the proprietaries of Carolina in 1667, and of New Jersey in 1664, 1683, and at other dates. In 1638 the first assembly of Maryland declared Magna Charta to be the measure of their liberties. The whole subject of privileges was forced into special prominence by the outbreak of the constitutional struggle 1 Laws of New York, 1 708. 210 SOURCES OF THE CONSTITUTION. chap. between the colonies and England. And so it was that the congress of delegates from nine colonies, which met in New York in 1765, issued a general declaration of rights ; and that a further and more formal pronounce- ment of the same character was put forth by the first Continental Congress in 1774. The latter became the basis of the bills of rights which eventually were incor- porated into the constitutions of the new States. It declared " that the inhabitants of the English colonies in North America, by the immutable laws of nature, the principles of the English Constitution, and their several charters or compacts, were entitled to life, liberty, and property ; and that they had never ceded to any sover- eign power whatever a right to dispose of either, without their consent ; that their ancestors, who first settled the colonies, were, at the time of their emigration from the mother-country, entitled to all the rights, liberties, and immunities of free and natural born subjects ; and by such emigration they by no means forfeited, surrendered, or lost any of those rights ; that the foundation of Eng- lish liberty, and of all free government, was the right of the people to participate in the legislative power, and they were entitled to a free and exclusive power of legis- lation in all matters of taxation and internal policy, in their several provincial legislatures, where their right of representation could alone be preserved ; that the respec- tive colonies were entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinity, according to viii. THE BILL OF RIGHTS. 211 the course of that law; that they were entitled to the benefit of such English statutes as existed at the time of their colonization, and which they had by experience found to be applicable to their several local and other circumstances ; that they were likewise entitled to all the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws." l It was widely anticipated by the public that the na- tional Constitution drafted at Philadelphia would contain a full enumeration of such ancient rights. The members of the Convention seem not to have appreciated the force of this popular feeling ; considering that as the people themselves now possessed the power of making their / own laws and of selecting those who should execute them, specific announcement of privileges which had grown out of old controversies with the crown was unnecessary. Sufficient provision was made in the body of the Consti- tution for taxation by the legislature only, for judgment in cases of impeachment, for the privilege of the writ of habeas corpus, for trial by jury in criminal cases, for the definition, trial, and punishment of treason with limita- tion of historical abuses in such connection, for the pro- hibiting of bills of attainder, ex-post facto laws, and laws impairing the obligation of contracts or imposing relig- ious tests. 3 All these were so many declarations of rights 1 Journals of Congress, I. ed., Phila. 1800. 2 Regarding attainder and ex-post facto laws, Mr. Justice Miller remarks : " The prohibition against passing bills of attainder is one 212 SOURCES OF THE CONSTITUTION. chap. for the protection of the citizens, not exceeded in value by any which could possibly find a place in any bill of which was intended to guard against a danger which has passed out of the memory of the present generation. Up to the time of the formation of this Constitution, the Parliament of England had been in the habit, by legislative enactments, of declaring individuals attainted for treason, for murder, for conspiracies, and further crimes, especially crimes against the government. This declaration of attainder by the legislative body was accompanied, either im- pliedly, or by the express terms of the bill, with a deprivation of all rights of property and of all capacity to transmit property by de- scent, or acquire it in that manner, in addition to punishments such as death and other cruelties. This kind of proceeding was had, not in a court of justice, . . but the legislature, the Parlia- ment, either with or without inquiry, or with such insufficient in- quiry as they chose to make, generally in the absence of the victim, proceeded at once to make charges, decide upon the guilt of the party, and announce the punishment, thus acting in all instances as the sovereign, the legislative, and judicial power at the same time. It was at one time suggested that ex-post facto laws, " equally forbidden to the general government and to the States, might be held to be any law which affected the rights of a person civilly or criminally after those rights had been acquired or established in accordance with existing laws. This, however, is a mistake, and the phrase ' ex-post facto laws ' has application alone to laws which relate to crimes and criminal proceedings, because it was used in that limited sense by our English ancestors long previous to the formation of the Constitution. The contemporary accounts of its adoption show that such was the sense in which the Convention understood it." — Lectures on the Constitution of the United States, 584-586. The Supreme Court of the United States has decided for this interpretation, in cases which have come before it, affirming the English origin, as it constantly does in its decisions on con- stitutional and legal questions. See Calder v. Bull, 3 Dall. 386; Watson v. Mercer, 8 Pet. 88, no; Satterlee v. Matthewson, 2 Pet. 380; Kring\. Missouri, 107 U. S. 221. vin. THE BILL OF RIGHTS. 213 rights. 1 But as soon as the draft of the Constitution left the Convention, the lack of a formal bill was severely and persistently criticised by the people. And the promise that one should be added, as soon as the new- government actually got under way, was found necessary in order to induce some of the principal States to ratify the instrument. The first ten amendments, therefore, were adopted as speedily as possible by the first Con- gress and the nation ; and to all intents they are to be regarded as a part of the Constitution in its original unity, as a product of the formative period. 3 Their position in this respect is essentially different from that of the amendments which are the outcome of subse- quent national experience. Thus there is not only a bill of rights in the Constitu- tion of the United States, but that bill of rights was consciously demanded by the American people them- selves against the judgment of their own Constitutional 1 See Federalist, No. 84. 2 " With a view of carrying into effect popular will, and also of dis- arming the opponents of the Constitution of all reasonable grounds of complaint, Congress, at its very first session, took into consider- ation the amendments so proposed; and by a succession of supple- mentary articles provided, in substance, a bill of rights, and secured by constitutional declarations most of the other important objects thus discussed " in the conventions of the States that adopted the Constitution. "These articles (in all twelve) were submitted by Congress to the States for their ratification, and ten of them were finally ratified by the requisite number of States, and thus became incorporated into the Constitution." — Story, Commentaries on the Constitution of the United States, I. 211, § 303. 214 SOURCES OF THE CONSTITUTION. CHAP. Convention, and for the express reason that they re- garded the liberties included therein as their liberties, because based upon old English law. Let ns take up consecutively these ten amendments. The first reads : " Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the right of the people peaceably to assemble, and to petition the government for a redress of grievances." 1 The first clause of the amendment treats of the right of religious liberty, — a right the daughter-land was before the mother-country in establishing. The English Toleration Act of 1688 2 granted privileges to dissenters, which their active share in seating William of Orange on the throne was thought to have earned ; and though far from according religious freedom, it laid foundation for the future. Reactionary statutes passed in the latter part of the reign of Queen Anne were repealed in the early years of the House of Han- over; 3 and from the accession of George II. dissenters were admitted to civil offices. 4 The laws against Roman 1 In Charles Pinckney's " Plan " of a federal constitution, sub- mitted to the Philadelphia Convention, was the following: "The legislature of the United States shall pass no law on the subject of religion, nor touching or abridging the liberty of the press." The amendment embraces recommendations of the conventions of New Hampshire, Virginia, and North Carolina. 2 1 Will, and Mary, c. 18. 8 S Geo. I. c. 4. 4 This was done by means of the Annual Indemnity Acts passed in favour of those who had not qualified themselves under the Cor- Viit. THE BILL OF RIGHTS. 215 Catholics, also, were gradually softened in operation. 1 Early in' the reign of George III. modern principles of toleration were enunciated in a judicial decision of the Lords, 2 on which occasion Lord Mansfield de- clared, in moving the judgment of the House: "There is nothing certainly more unreasonable, more inconsistent with the rights of human nature, more contrary to the spirit and precepts of the Christian religion, more iniqui- tous and unjust, more impolitic, than persecution. It is against natural religion, revealed religion, and sound policy." 3 Regulations relating to dissent became more and more relaxed. And on the verge of the adoption of the American Constitution, measures for the relief of both Roman Catholics and Protestants were passed ; and these were followed by a series of acts which eventually removed all civil disabilities. Of the condition of things in the colonies, Green thus speaks : " Europe saw, for the first time, a state growing up amid the forests of the west, where relig- ious freedom had become complete. Religious tol- poration and Test Acts. The first Indemnity Act was passed in 1727. With few exceptions, similar acts were passed every year thereafter, until the Test and Corporation Acts were repealed in 1828. 1 I Geo. I. t. 55, and 26 Geo. II. c. 33. 2 Chamberlain, of London v. AUen Evans, Esq. 8 Cobbett, Parliamentary History, XVI. 313-327. Among the strong sayings of Lord Mansfield in this connection was the remark : " Persecution for a sincere, though erroneous, conscience, is not to be deduced from reason or the fitness of things." 216 SOURCES OF THE CONSTITUTION. chap. eration had, in fact, been brought about by a medley of religious faiths such as the world had never seen before. New England was still a Puritan stronghold. In the southern colonies the Episcopal Church was established by law, and the bulk of the settlers clung to it ; but Roman Catholics formed a large part of the population of Maryland. Pennsylvania was a State of Quakers. Presbyterians and Baptists had fled from tests and persecutions to colonize New Jersey. Luther- ans and Moravians from Germany abounded among the settlers of Carolina and Georgia. In such a chaos of creeds, religious persecution became impossible." 1 The boast was wont to be made, that the Puritans of New England led the way in establishing by law religious toleration. A similar claim is still put forth on behalf of the Baptists of Rhode Island. Truth must award the honour to Maryland, where action proceeded from a combination of Roman Catholic and non-Roman Catholic conditions. 2 This action of Maryland took 1 History of the English People, V. 216. 2 Douglas Campbell {Puritan in Holland, England, and America') claims that religious liberty in America was of Dutch origin; apparently on the ground that it existed in the Netherlands at an early date. But he does not include Maryland in the sphere of Dutch influence. And, in fact, the action in Maryland seems to have had quite a different origin. Possibly Dutch example may have had indirect influence elsewhere. Roger Williams, in estab- lishing religious toleration in Rhode Island, was influenced not improbably by the Dutch Anabaptists. " Religious tolerance which prevailed in colonial Maryland, so much vaunted, and so often contrasted with the narrow intolerance vm. THE BILL OF RIGHTS. 1Y1 place in 1649, an d that of Rhode Island in 1663. In the next year the proprietaries granted to the colonists of New Jersey the widest toleration. Enactments known as the Duke's Laws, issued in 1665 by an assembly which met on Long Island at the call of Governor Nichol, declared that no person professing a belief in Christianity should be molested for his judgment in matters of religion. 1 The same principles were again promulgated in 1665, in the charter of liberties established by the assembly, acting under the Duke of York. 2 Charles II., in his charter of 1667, common in New England, was evidently dictated by worldly pru- dence, rather than prompted by an advanced charity. It must be remembered that at that time, the feeling in England was bitterly hostile to the Papists, and that the grant of lands to Lord Baltimore was from a Protestant monarch, and of a portion of the territory claimed by Virginia, a Protestant colony. Considerations of pru- dence also forbade exciting the animosity of the Puritan colonies of New England. Obviously, therefore, Lord Baltimore, whatever might have been his disposition, could not, with safety, have founded his new settlement upon a. basis of intolerance." — Crane and Moses, Politics, 119. However this may be, the claim of a Dutch origin for religious toleration in America is unhistorical. The honour belongs to Maryland. 1 Thompson, History of Long Island, I. 132, ed. 1843. 2 Douglas Campbell observes : " Of all the thirteen [original States], two and two only — Virginia and New York — embodied in their [new State constitutions] guarantees of religious liberty. . . . The other States retained religious tests for their officials, or in some form made religious discriminations. Virginia, in 1776, issued a Declaration of Rights, which, it is claimed, formed part of her constitution, laying down the principle " of religious liberty. " Still the State retained its established Church until 1785, and in various 218 SOURCES OF THE CONSTITUTION. chap. authorized the proprietaries of Carolina to accord relig- ious liberty to non-conformists who did not by their non-conformity disturb the civil peace of the province. Massachusetts, in 1691, passed an act benefiting all but Roman Catholics ; and the Quaker, William Penn, gave his colony, ten years later, a law guaranteeing freedom of conscience. Toleration similar to that of Massa- chusetts was provided in the charter granted by George II. to Georgia in 1732. Thus when the Constitution of the United States was formulated, the principle of religious freedom had been for some time gathering strength. Partly from this cause, and probably yet more from the fact that no one Christian body was in sufficient numerical predominance to make an ecclesiastical establishment of it for the nation a political possibility, it was enacted ; " Congress shall make no law respecting an establishment of religion, other ways fell short of practising full religious liberty. New York, however, in its first constitutions adopted in 1777, proceeded at the outset to do away with the established Church. . . . Then followed a section much broader and more explicit than that of the Virginia Declaration of Rights." — Puritan in Holland, England, and America, I. 250. This author claims that the New York constitu- tional enactment is the basis of American religious liberty, and because if was an enactment of New York, gratuitously assumes it to be of Dutch origin, — though in truth it was but a logical out- come of the laws of the Duke of York, 1665, adopted under Eng- lish influence. So far as the American Constitution is concerned, the first amendment seems to have originated in the draft of Mr. Charles Pinckney of South Carolina, proposed in the Philadelphia Convention. See Elliot, Debates, V. 131. See also action of New Hampshire convention. viii. THE BILL OF RIGHTS. 219 or prohibiting the free exercise thereof." * In Article VI. of the Constitution it had been laid down already : " No religious test shall ever be required as a qualification to any office or public trust under the United States," a reference to the English Test Act of 1673. 2 The next provision in Article I. of the amendments relates to freedom of public utterance and the press. The invention of printing in the fifteenth century brought with it a censorship, which was in the hands of the ecclesi- astical power throughout Europe. After the Reformation, this censorship devolved, in England, upon the crown ; and a licenser was regularly appointed whose imprima- tur was required for the lawful publication of any writing. Printing was regulated further by royal proclamations and grants of privilege. 3 The unlicensed issue of anything deemed seditious or slanderous was punished by mutila- tion and death. 4 And in the reigns of the first two 1 Constitution of the United States, Amendment I. 2 25 Car. II. 1.. 2. The famous Test Act was passed " for pre- venting dangers which may happen from Popish recusants." It worked much injustice. 3 " All printing was interdicted elsewhere than in London, Ox- ford, and Cambridge; and nothing whatever was allowed to be published until it had first been 'seen, perused, and allowed' by the Archbishop of Canterbury, or the Bishop of London, except only publications by the queen's printer, to be appointed for some special service, or by the law printers, for whom the license of the Chief Justices was sufficient." — Taswell-Langmead, English Consti- tutional History, 766. 4 St. 23 Eliz. c. 1. See cases of Stubbe, 1579; Udal, 1 59 1; Barrow and Greenwood, 1593; Penry, 1593. 220 SOURCES OF THE CONSTITUTION. chap. Stuarts, political and religious discussion was vigorously repressed by the Star Chamber. The Long Parliament used the weapon of censorship on the lines laid down by that obnoxious court, with such severity as to call forth from John Milton the Areopagitica, denouncing the suppression of truth by a licenser, and appealing for " the liberty to know, to utter, and to argue freely according to conscience, above all liberties." r After the Restoration, the Licensing Act, based upon the former parliamentary ordinances, was established for a period of three years, placing the regulation of printing in the con- trol of the government of Charles II. 2 The act was continued by repeated renewals until 1679 ;'" and was 1 Milton, Areopagitica, 73, 74, Arber's Reprints. In the British Museum are over 30,000 political newspapers and pamphlets that were printed in the twenty years between 1640 and the Restoration of Charles II. Douglas Campbell notes that Milton in no way refers to Holland or to Dutch ideas in advocating liberty of the press. Puritan in Holland, England, and America, II. 344, n. 2. 2 13 and 14 Car. II. u. 33. 3 " After the Licensing Act had been temporarily suffered to expire in 1679, the twelve judges, with Chief-Justice Scroggs at their head, declared it to be criminal at common law to publish anything concerning the government, whether true or false, of praise or censure, without the royal license. All newspapers were in consequence stopped ; and the people were reduced, for political intelligence and instruction, to two government publications. . . . In the absence of newspapers, the coffee-houses became the chief organs through which the public opinion of the metropolis vented itself, while the inhabitants of provincial towns, and the great body of the gentry and country clergy, depended almost exclusively on news-letters from London for their knowledge of political events." — Taswell-Langmead, English Constitutional History, 768. viii. THE BILL OF RIGHTS. 221 reaffirmed in 1685 by James II. for a term of seven years, and again, in 1692, by William and Mary. Efforts further to revive it proved unsuccessful, and it expired in 1^34. From the latter date censorship has formed no part of English law. 1 This emancipation, having such vast results in later times, attracted slight attention at the moment. And in fact, though theoretically free, the press was still molested not a little. It steadily rose in influence, and in the first thirty years of George III. attained the beginnings of its present greatness. 2 The last clause of Amendment I. deals with the right of petition. For many generations the exercise of the right was practically limited to redress of grievances, but 1 Lord Macaulay declared that the emancipation of the press had " done more for liberty and for civilization than the Great Charter or the Bill of Rights." — History of England, IV. 542. 2 It is not impossible that the example of Holland has aided the progress in America of the idea of freedom of the press. But although Douglas Campbell {Puritan in Holland, England, and America) strenuously asserts ythat Holland's example has so aided, he signally fails to establish«he point, and no one else has really attempted to establish it. /As a matter of fact, censorship of the press existed in the American colonies. In New England this lasted till about 1755. See Tyler, History of American Litera- ture, I. 113. Thus, in 1723, Benjamin Franklin was forced to leave Massachusetts for Pennsylvania on account of a libel, and his brother was imprisoned. A declaration of the principle of entire freedom of publication was incorporated in the second constitution of Pennsylvania, in 1790, only just previous to the amendment to the national Constitution referred to in the text. This action of Pennsylvania distinctly referred to English laws and usage. In 1805 and in 1821 New York recognized this principle. Other States have made similar provisions. 222 SOURCES OF THE CONSTITUTION. chap. just before the time of the Commonwealth, petitions on political subjects came into being, and many such were presented to Charles I. and to the Long Parliament. There was some intimidation by numerous bodies of peti- tioners, during that stormy period, and it was probably the memory of this that caused Charles II. to restrain, or rather to regulate, the right in such manner as to pro- tect the government. In the Bill of Rights of William and Mary, the privilege received sanction in the declara- tion : " It is the right of the subject to petition the king ; and all commitments and prosecutions for such petition- ing are illegal." 1 The present practice dates from 1779, just previous to the establishment of the American Con- stitution, when a widely organized attempt was made to procure the adoption of a certain measure in Parliament, by presenting numerously signed petitions from every part of England. This may properly be considered the beginning of the modern system of petitioning by which public measures and matters of public policy have been urged upon the attention of Parliament. The privilege came into special prominence in the colonies at the Revolutionary epoch, the Congress of 1774 distinctly claiming it in the Declaration of Rights : " They [the colonists] have a right peaceably to assemble, consider grievances, and petition the king, and that all prosecu- tions prohibiting proclamations and commitments for the same are illegal." 2 The second amendment deals with the question of a 1 1 Will, and Mary, Sess. 2, c. 2. 2 Eighth Resolution. vm. THE BILL OF RIGHTS. 223 trained militia, and the right of the people to bear arms, — a right involving the latent power of resistance to tyrannical government. From prehistoric days right to bear arms seems to have been the badge of a Teutonic freeman, and closely associated with his political privi- leges. Such armed freemen made up the military host of the tribe. During Saxon times in England, there was a fyrd, or national militia, 1 service in which was one of the three duties — trinoda necessitas — to which every alodial proprietor was subject. This is met in full vigour long after the Norman Conquest, working its way through the superstratum of feudalism. It continued side by side with the feudal system, until, under Henry III. and Edward I., the two were united in a general national armament. By the law known as the Assize of Arms, in 1181, every freeman was required to provide himself with a doublet of mail, iron skull-cap, and lance. In the reign of Queen Mary, this law was altered to provide for arms of a more modern sort. 2 James I. abrogated it. 3 But although the militia languished for awhile, as the standing army grew in efficiency, it was restored to vigour in 1 75 7. The Bill of Rights provided : " The subjects which are Protestants may have arms for their defence, suitable to their conditions, and as allowed by law." 4 1 The fyrd, the armed folkmoot of each shire, was originally the only military organization known to the English. 2 4 and 5 Phil, and Mary, t. 2 and c. 3. 3 1 Jac. c. 25, § 46. 4 1 Will, and Mary, Sess. 2, c. 2. Blackstone remarks that this declaration providing for the possession of arms " is a public al- 224 SOURCES OF THE CONSTITUTION. chap. Upon this is based the second amendment to the Con- stitution, which reads : " A well-regulated militia being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed." 1 And concerning it, Judge Cooley remarks : " It was adopted, with some modification and enlargement, from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the late dynasty in disarming the people, and as a pledge of the new rulers, that this tyrannical action should cease. The right de- clared was meant to be a strong moral check against the usurpation of arbitrary power by rulers, and as a neces- sary and efficient means of regaining rights temporarily overturned by usurpation." 2 The third amendment deals with the quartering of the troops on private citizens, a provision which speaks for itself, and the object of which is to secure the enjoyment lowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanction of society and the laws are found insufficient to restrain the violence of oppression." — Com- mentaries, I. 154. 1 The convention of New Hampshire which acted on the adop- tion of the national Constitution, proposed as an amendment: "Congress shall never disarm any citizen, unless such as are, or have been, in actual rebellion." The conventions of Virginia and New York proposed : " That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state"; and " that any person religiously scrupulous of bear- ing arms, ought to be exempted, upon payment of an equivalent to employ another in his stead." 2 Principles of Constitutional Law, 270. viii. THE BILL OF RIGHTS. 225 of the great right of the common law, that a man's house shall be his castle, privileged against civil and military intrusion. Among the tyrannies objected to in the Peti- tion of Right of the time of Charles I. is, that " of late great companies of soldiers and mariners have been dis- persed into divers counties of the realm, and the inhabi- tants, against their wills, have been compelled to receive them into their houses, and there to suffer them to sojourn, against the laws and customs of this realm, and to the great grievance and vexation of the people." 1 By a law of Charles II. it was enacted " that no officer, military or civil, or other persons shall quarter or billet any soldier upon any inhabitant of this realm, without his consent, and that every such inhabitant of this realm may refuse to quarter any soldier, notwithstanding any order whatsoever." 2 Nevertheless, a complaint is to be found in the Bill of Rights, that James II. had violated fundamental liberties of the realm by, among other things, "quartering soldiers contrary to law," 3 and a simi- lar complaint against both king and Parliament is recorded in the Declaration of Independence : " He [George III.] has combined with others . . . giving his assent to their pretended legislation, for quartering large bodies of i 3 Car. I. c. i, § 6. * 3i_Car. II. t. i. 3 i Will, and Mary, Sess. 2, u. 2. The provisions of this stat- ute and of the Petition of Right against the billeting of troops are suspended every year by authority of Parliament, in the Mutiny Act, which accords express permission to billet soldiers in inns and victualling-houses. 226 SOURCES OF THE CONSTITUTION. chap. armed troops among us." The language of the consti- tutional amendment is: "No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law." The fourth amendment touches upon the question of protection against civil search without formal warrant, and the subject of general warrants. The warrant — the paper which authorizes so grave an act as depriving a citizen of personal liberty — is neces- sarily surrounded with safeguards to protect the private individual against unjust and arbitrary police measures. The English race has been insistent with reference to these safeguards, and the warrant, as we now have it, is a characteristically English institution. A warrant must always name the person against whom it is directed. A general warrant, i.e. one that does not name the person, is contrary to English freedom. 1 But the latter point was not established until just before the American Revolution, — the illegal custom of the arresting of persons on general warrants lingering even into the reign of George III., when it received its death blow in the famous case of Wilkes. The question was raised by the printing of the libellous Number Forty-Five of the North Briton, the authorship of which was at first unknown. Lord Halifax, one of the secretaries of state, issued a general warrant describing no individual, but empowering the police to take whomever they might think guilty ; which resulted in 1 See Lieber, Civil Liberty and Self- Government, 62. viii. THE BILL OF RIGHTS. 227 the arrest of many innocent persons, and finally, among them, of the culprit himself, — with seizure of his papers. 1 He resisted on the ground that he had not been described in the warrant. And after litigation which aroused the excited sympathy of both England and the colonies, he won legal decision in his favour, and obtained damages 1 "There was a libel, but who was the libeller? Ministers knew not, nor waited to inquire, after the accustomed forms of law; but forthwith, Lord Halifax, one of the secretaries of state, issued a warrant, directing four messengers, taking with them a constable, to search for the authors, printers, and publishers, and to apprehend and seize them, together with their papers, and bring them in safe custody before him. No one having been charged or even sus- pected, no evidence of crime having been offered, no one was named in this dread instrument. The offence only was pointed at; not the offender. The magistrate, who should have sought proofs of crime, deputed this office to his messengers. Armed with their roving commission, they set forth in quest of unknown offenders; and unable to take evidence, listened to rumours, idle tales, and curious guesses. They held in their hands the liberty of every man whom they were pleased to suspect. Nor were they triflers in their work. In three days they arrested no less than forty-nine persons on suspicion, — many as innocent as Lord Halifax himself. . . . The messengers received verbal directions to apprehend Wilkes, under the general warrant. Wilkes, far keener than the crown lawyers, not seeing his own name there, declared it ' a ridiculous warrant against the whole English nation,' and refused to obey it. But after being in custody of the messengers for some hours, in his own house, he was taken away in a chair, to appear before the secretaries of state. No sooner had he been removed, than the mes- sengers, returning to his house, proceeded to ransack his drawers, and carried off all his private papers, including even his will and pocket-book." — May, Constitutional History of England, II. 246, 247. 228 SOURCES OF THE CONSTITUTION. chap. against those who, on a general warrant, had invaded his liberties. 1 The cause of freedom was vindicated. The courts decided against the validity of general war- rants, and the decision was confirmed by the House of Commons and sustained by popular opinion. The amendment to the Constitution reads : " The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." Amendments V. to X. inclusive read as follows : — Article V. " No person shall be held to answer for a capital, or otherwise infamous crime, unless on a present- ment or indictment of a grand jury, except in cases arising in the land and naval forces, or in the militia, when in actual service in time of war or public danger ; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb ; nor shall be 1 Lord Chief Justice Pratt thus characterized the warrant : " The defendant claimed the right, under precedents, to force persons' houses, break open escritoires, and seize their papers, upon a general warrant, where no inventory is made of the things thus taken away, and where no offenders' names are specified in the warrant, and therefore a discretionary power given to messengers to search wherever their suspicions may chance to fall. If such a power is truly invested in a secretary of state, and he can delegate this power, it certainly may affect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject." viii. THE BILL OF RIGHTS. 229 compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, with- out due process of law; nor shall private property be taken for public use, without just compensation." Article VI. " In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State or district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favour, and to have the assist- ance of counsel for his defence." Article VII. " In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law." 1 Article VIII. " Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual pun- ishments inflicted." 1 Mr. Justice Miller, of the United States Supreme Court, says : " The first thing to be observed about this article is that it prescribes this mode of trial in ' suits at common law.' It does not use the same words as the clause extending the judicial power ' to all cases in law and equity.' It is to be inferred, therefore, that trial by jury, as imposed by the Constitution, has relation to the common law as it was understood in England and to the right to such a trial in that class of cases." — Lectures on Constitution of the United States, 492. 230 SOURCES OF THE CONSTITUTION. chap. Article IX. "The enumeration of the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Article X. " The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The provisions in these articles, intended to assure criminal justice, are mainly from the English common law. The expression, "twice put in jeopardy of life or limb," has descended from days when sanguinary pun- ishments were frequent. The clause, " nor shall be compelled in any criminal case to be a witness against himself," was there placed to prevent repetition of the inquisitorial proceedings once practised in England. The requirement, that just compensation be made for private property taken for public uses, rests upon Magna Charta ; as does also the provision for speedy trial, and that no person be " deprived of life, liberty, or property without due process of law." * 1 The expression " due process of law " is a technical one. " It has long been in use among law writers, and in judicial decisions, as implying correct and orderly proceedings, which are due because they observe all the securities of private right which are applicable in the particular case. In this sense it is synonymous with ' law of the land,' as used in the famous twenty-ninth chapter of Magna Charta. . . . The identity of the two in meaning and purpose is now well settled." — Cooley, Principles of Constitutional Law, 222. " As to the words from Magna Charta, after volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this : that they were intended to secure viii. THE BILL OF RIGHTS. 231 The common-law origin and force of the claims in the sixth amendment requiring that the accused be in- formed of the nature and cause of the accusation, and be confronted with witnesses against him, is so understood and admitted in practice, that surprise has been occa- sioned that these specifications should have been thought needful. Of the succeeding provisions of this article for " compulsory process of obtaining witnesses in his favour and to have the assistance of counsel in his defence," the same cannot be said. For it was a strange old practice, derived from the Roman civil law, to allow a party accused of capital offence no opportunity to clear himself by the testimony of witnesses in his favour. The practice was denounced by Sir Edward Coke as unjust ; and soon after the accession of James I., the House of Commons carried, amid some opposition from the crown and upper house, a clause providing that in certain cases witnesses might be sworn for, as well as against, the ac- cused. By a statute of William and Mary, the same principle was established for cases of treason ; 1 and in the individual from the arbitrary exercise of the powers of govern- ment, unrestrained by the established principles of private right and distributive justice." — Bank of California v. Okely, 4 Wheat. 235. See also Murray's Lessee v. Hoboken Land Co., 18 How. 272, 276; Taylor v. Porter, 4 Hill, (N.Y.) 140, 143; Hoke v. Henderson, 4 Dev. (N.C.) I; Kinney v. Beverley, I Hen. & M. (Va.) 531; James v. Reynolds, 2 Tex. 250; Norman v. Heist, 5 W. & S. (Penn.) 171 ; Davidson v. New Orleans, 96 U. S. Rep. 97; Web- ster in Dartmouth College v. Woodward, 4 Wheat. 518; Webster, Works, V. 487. 1 7 Will. III. c. 3. This statute provides that persons in- 232 SOURCES OF THE CONSTITUTION. chap. the reign of Queen Anne, this was extended. 1 Yet, at the period of the construction of the American Consti- tution, the law did not allow the privilege in ordinary capital cases ; and the amendment, in extending it to all classes of criminals without restriction, was, therefore, an important improvement upon the usage of the mother- country. Another singular English deficiency — the fail- ure in certain circumstances to give a prisoner under cap- ital accusation the benefit of counsel for his defence — was supplied in the American Constitution by the guar- antee of counsel in all cases. 2 The eighth amendment treats of excessive bail and punishment, and is simply a transcript of a clause in the Bill of Rights framed at the Revolution of 1688. Its object is to warn the national government against such dieted for high treason shall have a copy of the indictment deliv- ered to them five days at least before the trial, and a copy of the panel of the jurors two days before the trial; that they shall be allowed the assistance of counsel throughout the trial, and be entitled to process of the court to compel the attendance of their witnesses, who must be examined on oath. It removes any doubts as to the statute of Edward VI., by requiring the oaths of two lawful witnesses, unless the prisoner shall willingly, without vio- lence, in open court confess the charge, etc. 1 7 Anne, c. 21. 2 In the first State constitutions of Maryland, New Jersey, Penn- sylvania, Massachusetts, and Vermont, provision was made, guaran- teeing counsel in all cases, and from these State provisions the amendment to the national Constitution came. This defect in the English law, thus supplied by America, was remedied in the mother- country by statute 6 and 7 Will. IV. c. 114. See Cooley, Consti- tutional Limitations, 330-338. vin. THE BILL OF RIGHTS. 233 proceedings as took place in England during the arbi- trary Stuart period, — when a demand for enormous bail was often made against persons obnoxious to the court; who, failing to procure this, were thrown into prison. Excessive fines and amercements were also occasionally- imposed, and vindictive and cruel punishments meted out. The clause in the Bill of Rights from which the amendment was drawn specifies : " That excessive bail ought not to be required, nor excessive fines imposed ; nor cruel and unusual punishment inflicted." : We come, in conclusion, to trial by jury — as provided in Article III. of the Constitution for criminal cases ; and in the amendments, for criminal cases and civil actions alike — one of the most characteristic elements of the American constitutional inheritance from England. The origin of this "bulwark of constitutional liberty" has been the topic of a great deal of learned discussion and of many antagonistic theories. 2 Probably the jury in 1 I Will, and Mary, Sess. 2, c. 2. 2 Philipps, On Juries, and Probert, On the Ancient Laws of Cambria, claim that the jury system originated among the Welsh, from whom the Anglo-Saxons borrowed it. Selden, Spelman, Coke, Turner, Philipps, and G. L. von Maurer regard it as an outcome of Anglo-Saxon invention. Bacon, Montesquieu, Black- stone, Savigny, and Nicholson — preface to Wilkins, Anglo-Saxon Laws — maintain that it is an importation from primitive Germany. Wormiers and Worsaae think it came from the Danes, who in turn derived it from the Norsemen. Hickes, Reeves, and others claim a Norse origin through the Normans; and Conrad Maurer points to a north German source. Of writers who admit its Norman origin, Daniels thinks the Normans found it in France, Mohl carries it 234 SOURCES OF THE CONSTITUTION. chap. its earliest form, that of a body of sworn recognitors, was introduced into England by the Normans, they having borrowed it from the Franks. It is traceable to the capit- ularies of the Carolingian kings, and possibly through these, to the fiscal regulations of the Theodosian Code, — thus having some affinity to the Roman jurisprudence. 1 But although an importation, the system gained its real development in England alone, and gradually ceased to exist in Normandy and in the rest of France. From a simple beginning at the Conquest, it was consolidated in the reign of Henry III., and became one of the settled back to the canon law of the Church, Meyer derives it from Asia by way of the Crusades, and Maciejowski derives it from the Slavic neighbours of the Teutonic invaders of England. Entstehung der Schwurgerichte, 1 1-19. Bourguignon says despairingly, " son origine se perd dans la nuit des temps." — Memoire stir le Jury. See Forsyth, History of Trial by Jury; Gneist, Self- Government ; Glasson, Hist, du Droit et des Inst, de V Angleterre, etc. Bishop Stubbs — Constitutional History of England — and other recent authorities accept the Carolingian and Theodosian origin, as stated in Palgrave, English Commonwealth, corrected and adjusted by Dr. Brunner, Entstehung der Schwurgerichte. 1 See Smith, Dictionary of Greek and Roman Antiquities : " Codex Theodosianus." Brunner cites the Theodosian Code : " Super vacantibus ac caducis . . . certi etiam dirigantur qui cuncta solerter inquirant et cujus fuerint facultates et si nemo eas sibi jure nititur retentare. Ac si locum fisco factum esse claruerit occu- patis prius bonis et rerum omnium descriptione perfecta . . . ; " Codex Theodosianus, X. 10, L. u. "Ex privatorum . . . sollicitu dine contractum . . . illis . . . personis a quibus publici numeris in- juncta curantur, nullum formitem calumniae patimur litis accendi. Cur enim continentiam venditionis alienae inquisitio palatina rime- tur ? " Ibid. L. 29. vm. THE BILL OF RIGHTS. 235 institutions of the land, in close relationship with the old Saxon procedure of the shiremoot. This king, who has been called its father, applied it to every variety of fiscal and legal transaction; and down to much later days it was used largely in the assessment of taxation. The Con- stitutions of Clarendon give the earliest record in statute law of its employment for criminal presentment and civil inquest. 1 Later, in the Assize of Clarendon, provision was made that twelve men from each hundred, with four from each township, should be sworn to present all reputed criminals of their district in each county court, — a jury of presentment, which may have been, in part, an enlargement of a Saxon institution existing as far back as the reign of Ethelred II., and which, as regulated by the Articles of Visitation of Richard I., gave rise to the grand jury of modern times. From a desire to still further promote the security of justice, there arose a procedure of having the testimony of this body examined by a second body — the petit jury — and this procedure event- ually became settled usage. 2 But at first the process of trial by jury was different in many respects from that with which we are now familiar. Palgrave states this difference with admirable clearness. "Jurymen in the present day are triers of the issue ; they are individuals who found their opinion upon the evidence, whether oral or written, adduced before them ; and the verdict delivered by them is their declaration of the judgment which they have found. 1 A.D. 1 164. 2 A.D. 1 194. 236 SOURCES OF THE CONSTITUTION. chap. But the ancient jurymen were not impanelled to examine into the credibility of evidence ; the question was not discussed and argued before them ; they, the jurymen, were the witnesses themselves, who, of their own knowl- edge, and without the aid of other testimony, afforded their evidence respecting the fact in question to the best of their belief. In its primitive form a trial by jury was therefore only a trial by witnesses. " x That is to say, the jurors decided from their own personal knowl- edge of the facts, or from tradition, without other wit- nesses than themselves. And, incidentally, this explains an important point, — namely, why the trial was properly held in the locality of the accused's residence, and the jury chosen from the vicinage in which the question arose. 2 The development by which jurors ceased to be wit- nesses, and became judges of the fact, is common to both the criminal and the civil jury, and is traceable from the time of Edward III. 8 Out of the difficulty of secur- ing twelve men acquainted with the matter in trial and able to give a unanimous verdict based on personal knowledge, grew the custom of permitting the jurors who were first summoned to add to their number per- sons having such knowledge. 4 And later on, jurors 1 English Commonwealth, I. 243. 2 " The testimony of the neighbourhood was appealed to for the purpose of deciding questions which related to matters of general concern." — Forsyth, Trial by Jury, 92. 3 Year Books, 25 Edw. III. 4 " The proceeding by assize was, in fact, merely the sworn tes- timony of a certain number of persons summoned to give evidence vin. THE BILL OF RIGHTS. 1Z1 without information were separated from those possess- ing it, the former becoming judges of evidence only, and the latter witnesses ; a decision being given by the former upon the testimony of the latter, and the law in the case being decided by the presiding official in the king's name. 1 By 1450 we have distinct evidence that the mode of procedure was the same as that in modern use, 2 though in occasional instances the ancient functions of jurors lingered as late as to the accession of the House of Hanover. The Declaration of Independence complains of the British government " for depriving us in many cases of the benefits of trial by jury," and for " transporting us beyond seas to be tried for pretended offences." " Trial by jury," it has been said, " is justly dear to the American people. It has always been an object of deep interest and solicitude, and every encroachment upon it upon matters within their own knowledge. They were themselves only witnesses. If all were ignorant of the facts, a fresh jury had to be summoned; if some of them only were ignorant, or if they could not agree, others were to be added — a process subsequently called afforcing the jury — until a verdict could be obtained from twelve unanimous witnesses." — Taswell-Langmead, English Con- stitutional History, 166. 1 As a result of this "witnesses were examined and cross- examined in open court; the flood gates of forensic eloquence were opened, and full scope given to the advocate to exercise his inge- nuity and powers of persuasion on the jurors, to whose discretion the power of judging on matters of fact was now entrusted." — Starkie, "Trial by Jury," Law Review, No. IV., August, 1845. 2 Fortesque, De Laudibus Leguma Anga, c. 26. , 238 SOURCES OF THE CONSTITUTION. chap. has been watched with great jealousy." 1 " The privilege in criminal cases has been looked upon as a necessary part of the liberties of the people, and a sentiment attaches to it which will scarcely suffer its value to be questioned. Every State constitution preserves its suits in the State courts, and every new and revised constitu- tion repeats the guaranty of it. Even the common-law requirement of unanimity in the verdict, which is of more than doubtful value, is retained without inquiry or ques- tion, because it has existed from time immemorial." 2 The proud words of retort to Montesquieu, with which Blackstone ends his panegyric on the jury system, are as applicable to America as to England; "A celebrated French writer, who concludes that Rome, Sparta, and Carthage have lost their liberties, therefore those of England in time must perish, should have recollected that Rome, Sparta, and Carthage, at the time when their liberties were lost, were strangers to the trial by jury." 3 Whatever may be in store for America, her past is closely inwrought with that of England. Her laws, as her language, have descended to her. For, though our ancient Teutonic race, in these new days, may encircle the globe, and find itself scattered on all continents and beside all seas, it will have ever one common home. 1 Parsons v. Bedford, 3 Pet. 433, 446. 2 Cooley, Principles of Constitutional Law, 237, 238. 8 Commentaries, Book III. 379. vin. THE BILL OF RIGHTS. 239 The Constitution of the United States possesses much that is peculiar to itself. It is not the English Consti- tution of any age. Yet it is " heir of all the ages " of English history. For the most part, as we have seen, it applies to new conditions, time-tried principles of free government. It is well thus to call to mind that what is best and noblest in American governmental institutions is safely founded upon an historic past. The oak of English freedom that the fathers of America transplanted, has grown old and gnarled and stanch and great of girth, and its firm roots have struck down deep into the soil. Though clouds of social and political problem may lower above it, it recks not of momentary sunshine or passing tempest, — that sturdy oak, bounded by the suc- ceeding circles of the centuries, and growing only more strong with the ongoing of the years. APPENDIX APPENDIX. CONSTITUTION OF THE UNITED STATES. We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. ARTICLE I. Section i. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Sec. 2. The House of Representatives shall be composed of members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature. No person shall be a Representative who shall not have attained the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen. [Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, ac- cording to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, 243 244 SOURCES OF THE CONSTITUTION. three-fifths of all other persons.] x The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Vir- ginia ten, North Carolina five, South Carolina five, and Georgia three. When vacancies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies. The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment. Sec. 3. The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof, for six years; and each Senator shall have one vote. Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expira- tion of the sixth year, so that one-third may be chosen every second year; and if vacancies happen by resignation, or otherwise, during the recess of the legislature of any State, the executive thereof may make temporary appointments until the next meeting of the legis- lature, which shall then fill such vacancies. No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State for which he shall be chosen. 1 The clause included in brackets is amended by the XlVth Amend- ment, ad section. APPENDIX. 245 The Vice-President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided. The Senate shall choose their other officers, and also a President pro tempore, in the absence of the Vice-President, or when he shall exercise the office of President of the United States. The Senate shall have sole power to try all impeachments.. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside ; and no person shall be convicted without the concur- rence of two-thirds of the members present. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honour, trust, or profit under the United States; but the party convicted shall nevertheless be liable and subject to indict- ment, trial, judgment, and punishment, according to law. Sec. 4. The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators. The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day. Sec. 5. Each house shall be the judge of the elections, returns, and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may, be authorized to compel the attendance of absent members, in such manner, and under such penalties, as each house may provide. Each house may determine the rules of its proceedings, punish its members for disorderly behaviour, and, with the concurrence of two-thirds, expel a member. Each house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either house on any question shall, at the desire of one-fifth of those present, be entered on the journal. 246 SOURCES OF THE CONSTITUTION. Neither house, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting. Sec. 6. The Senators and Representatives shall receive a com- pensation for their services, to be ascertained by law, and paid out of the Treasury of the United States. They shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house they shall not be questioned in any other place. No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emolu- ments whereof shall have been increased during such time ; and no person holding any office under the United States shall be a member of either house during his continuance in office. Sec. 7. All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills. Every bill which shall have passed the House of Representatives and the Senate shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two-thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of that house, it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevents its return, in which case it shall not be a law. APPENDIX. 247 Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and, before the same shall take effect, shall be approved by him, or, being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, accord- ing to the rules and limitations prescribed in the case of a bill. Sec. 8. The Congress shall have power, — to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States; To borrow money on the credit of the United States; To regulate commerce with foreign nations, and among the several States, and with the Indian tribes; To establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures ; To provide for the punishment of counterfeiting the securities and current coin of the United States; To establish post-offices and post-roads. To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; To constitute tribunals inferior to the Supreme Court; To define and punish piracies and felonies committed on the high seas, and offences against the law of nations; To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; To provide and maintain a navy; To make rules for the government and regulation of the land and naval forces; To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; 248 SOURCES OF THE CONSTITUTION. To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the Government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings; — and To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof. Sec. 9. The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. The privilege of the writ of habeas corpus shall not be sus- pended, unless when in cases of rebellion or invasion the public safety may require it. No bill of attainder or ex post facto law shall be passed. No capitation, or other direct tax shall be laid, unless in propor- tion to the census or enumeration hereinbefore directed to be taken. No tax or duty shall be laid on articles exported from any State. No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to, or from, one State be obliged to. enter, clear, or pay duties in another. No money shall be drawn from the Treasury, but in consequence of appropriations made by law ; and a regular statement and account of the receipts and the expenditures of all public money shall be published from time to time. APPENDIX. 249 No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them shall, without the consent of the Congress, accept of any present, emolu- ment, office, or title, of any kind whatever, from any king, prince, or foreign state. Sec. io. No State shall enter into any treaty, alliance, or confed- eration; grant letters of marque or reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility. No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely neces- sary for executing its inspection laws; and the net produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the Treasury of the United States; and all such laws shall be subject to the revision and control of the Congress. No State shall, without the consent of the Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such immi- nent danger as will not admit of delay. ARTICLE II. Section i. The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice-President, chosen for the same term, be elected as follows : — Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector. [The electors shall meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabi- 250 SOURCES OF THE CONSTITUTION. tant of the same State with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit sealed to the seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the pres- ence of the Senate and the House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed ; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immedi- ately choose by ballot one of them for President; and if no person have a majority, then from the five highest on the list the said House shall in like manner choose the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote ; a quorum for this purpose shall con- sist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the electors shall be the Vice-President. But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice-President.] x The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States. No person except a natural-born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States. In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice-President, and 1 This clause in brackets has been superseded by the Xllth Amend- ment. APPENDIX. 251 the Congress may by law provide for the case of removal, death, resignation, or inability, both of the President and Vice-President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected. The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them. Before he enter on the execution of his office, he shall take the following oath or affirmation : " I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States." Sec. 2. The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment. He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur ; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public min- isters and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; but the Con- gress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of laws, or in the heads of departments. The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session. 252 SOURCES OF THE CONSTITUTION. Sec. 3. He shall from time to time give to the Congress informa- tion of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States. Sec. 4. The President, Vice-President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misde- meanours. ARTICLE III. Section i. The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Con- gress may from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continu- ance in office. Sec. 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and con- suls; to all cases of admiralty and maritime jurisdiction ; to contro- versies to which the United States shall be a party; to controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign states, citizens, or subjects. In all cases affecting ambassadors, other public ministers and con- suls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before men- tioned, the Supreme Court shall have appellate jurisdiction, both as APPENDIX. 253 to law and fact, with such exceptions, and under such regulations as the Congress shall make. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed ; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed. Sec. 3. Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted. ARTICLE IV. Section i. Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. Sec. 2. The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime. No person held to service or labour in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due. Sec. 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the juris- 254 SOURCES OF THE CONSTITUTION. diction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned, as well as of the Congress. The Congress shall have power to dispose of and make all need- ful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State. Sec. 4. The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence. ARTICLE V. The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Con- stitution, when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress ; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate. ARTICLE VI. All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution as under the Confederation. This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the APPENDIX. 2SS supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding. The Senators and Representatives before mentioned, and the members of the several State legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States. ARTICLE VII. The ratification of the conventions of nine States shall be suffi- cient for the establishment of this Constitution between the States so ratifying the same. Done in Convention by the unanimous consent of the States present, 1 the Seventeenth day of September, in the year of our Lord one thousand seven hundred and eighty-seven, and of the Inde- pendence of the United States of America the Twelfth. In Witness whereof we have hereunto subscribed our names. Go Washington, Presidt. and Deputy from Virginia. New Hampshire — John Langdon, Nicholas Gilman. Massa- chusetts — Nathaniel Gorham, Rufus King. Connecticut — Wm. Saml. Johnson, Roger Sherman. New York — Alexander Hamil- ton. New Jersey — Wil. Livingston, Wm. Patterson, David Brearley, Jona. Dayton. Pennsylvania — B. Franklin, Thos. Fitzsimons, Thomas Mifflin, Jared Ingersoll, Robt. Morris, James 1 Rhode Island was not represented. Several of the delegates had left the Convention before it concluded its labours, and some others who remained refused to sign. In all, 65 delegates had been appointed, SS attended, 39 signed. The first ratification was that of Delaware, Dec. 7, 1787 ; the ninth (bringing the Constitution into force) that of New Hampshire, June 21, 1788 ; the last, that of Rhode Island, May 29, 1790. 256 SOURCES OF THE CONSTITUTION. Wilson, Geo. Clymer, Gouv. Morris. Delaware — Geo. Read, Richard Bassett, Gunning Bedford, Jun., Jaco. Broom, John Dick- inson. Maryland — James M'Henry, Danl. Carroll, Dan. Jenifer, of St. Thomas. Virginia — John Blair, James Madison, Jun. North Carolina — Wm. Blount, Hugh Williamson, Rich'd Dobbs Speight. South Carolina — J. Rutledge, Charles Pinckney, Charles Cotesworth Pinckney, Pierce Butler. Georgia — William Few, Abr. Baldwin. Attest : William Jackson, Secretary. Articles in addition to, and amendment of, the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution. ARTICLE I.i Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. ARTICLE II. A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed. ARTICLE III. No soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. ARTICLE IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall 1 Amendments I.-X. inclusive were proposed by Congress to the Legislatures of the States, Sept. 25, 1789, and ratified 1789-91. APPENDIX. 257 not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized. ARTICLE V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. ARTICLE VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and dis- trict wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtain- ing witnesses in his favour, and to have the assistance of counsel for his defence. ARTICLE VII. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law. ARTICLE VIII. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 258 SOURCES OF THE CONSTITUTION. ARTICLE IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. ARTICLE X. The powers not delegated to the United States by the Constitu- tion, nor prohibited by it to the States, are reserved to the States respectively, or to the people. '■• r ARTICLE XI. 1 The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State. ARTICLE XII. 2 The electors shall meet in their respective States, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in dis- tinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the Government of the United States, directed to the President of the Senate; — the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted; ■ — the person 1 Amendt. XI. was proposed by Congress Sept. 5, 1794, and declared to have been ratified by the legislatures of the three-fourths of the States, Jan. 8, 1798. 2 Amendt. XII. was proposed by Congress Dec. 12, 1803, and declared to have been ratified Sept. 25, 1804. APPENDIX. 259 having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choos- ing the President, the votes shall be taken by States, the repre- sentation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice- President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President shall be the Vice-President, if such number be * majority of the whole number of electors appointed, and if no person have a major- ity, then from the two highest numbers on the list the Senate shall choose the Vice-President ; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. ARTICLE XIII. 1 Section i. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Sec. 2. Congress shall have power to enforce this article by ap- propriate legislation. i Amendt. XIII. was proposed by Congress Feb. i, 1865, and de- clared to have been ratified by 27 of the 36 States, Dec, 18, 1865. 260 SOUIiCES OF THE CONSTITUTION. ARTICLE XIV.i Section i . All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Sec. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representa- tives in Congress, the executive and judicial officers of the State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citi- zens of the United States, or in any way abridged, except for par- ticipation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Sec. 3. No person shall be a Senator or Representative in Con- gress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of the Congress, or as an officer of the United States, or as a member of any State leg- islature, or as an executive or judicial officer of any State, to sup- port the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability. 1 Amendt. XIV. was proposed by Congress June 16, 1866, and de- clared to have been ratified by 30 of the 36 States, July 28, 1868. APPENDIX. 261 Sec. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obliga- tions, and claims shall be held illegal and void. Sec. 5. The Congress shall have power to enforce, by appro- priate legislation, the provisions of this article. ARTICLE XV. 1 Section i. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, colour, or previous condition of servitude. Sec. 2. The Congress shall have power to enforce this article by appropriate legislation. 1 Amendt. XV. was proposed by Congress Feb. 26, 1869, and declared to have been ratified by 29 of the 37 States, March 30, 1870. INDEX INDEX. Abbots, their membership in Par- liament, 67. Act, Licensing, 220, ib. n. 3. Act of Settlement, 99, 108, 109, 127 n. 1, 194, 196. Act, Test, 215 n. 4. Act of Toleration, 214. Adams, John, cited, 9, 31. Alfonso V., King of Aragon, 194 n. 1. Alfred the Great, 8 n., 87. Amendments, to the Constitution of the United States, 213, ib. n. 2, 214, 219, 221, 222, 224, 226, 228, 229, 233. America, i, 8, 7 n., 8, 27 n. 2, 36, n., 41, 42, 43 n. 1, 74 n. 1, 78 n. 1, us, ^o. I S I . z 96, 201 n - 1, 205 n. 1, 206, 216 n. 2, 232 n. 2. American Bar, 184, 202. Andros, Sir E., 17. Anglican Church, 11 u. 2, 69, 73, 88, ib. 11. i, 123, 124, 127, 135, 216. Anglo-Saxon, superseded other races in England, 6 n. ; race, 7 n. ; freedom, 8 n. ; invasion of England, 62; kingship, 129; in- stitutions, 233 n. 2. Anne, Queen, 22, 92, 97, 109, 145, 151, 157, ib. n. 2, 214, 232. Antwerp, 78 n. 1. Appropriation by Parliament, in. Aragon, 194 n. 1. Archdeacons, 73. AreopagiHca, The, of Milton, 220. Aristotle, philosophy of, 1, ib. «. j.. Arms, Assize of, 223. Arms, right to bear, 223, ib. n. 1, ib. n. 4, 224, ib. n. 1. Arnold, Sir Edwin, cited, 7 n. Arrest, freedom from, 103, 104, ib. n. 4, 105, 106. Assize of Arms, 223. Assize of Clarendon, 235. Athabasca, 8 n. Athelstan, King, 126. Attainder, bills of, 96, ib. u. i, 211, ib. n. ■*. Audit by Parliament, in. Aukland, 8 n. Australia, 204. Austria, 45 n. Bacon, Lord, 97 n. 1, 99 n. 3. Bagehot, Walter, cited, 172. Bail for prisoners, 229, 233. Ballarat, 8 n. Baltimore, Lord, 17, 200, 216 n. *. Baptists, 216. Bar, American, 184, 202. Barons, the English, 67, 74, 76. Barons' War, 71, 90, 131. Benfham, 201 n. 1. Berkeley, Lord, 21. Berkeley, Sir William, 13. Bicameral System, 74, ib. u. 1, 83, 84 n. 1. See Two Houses. 265 266 INDEX. Bill of Rights, English, 9, 104, 137, 207, 222-225, 232, 233 ; Virginia, 13 ; Massachusetts, 15 ; Con- necticut, 17 ; Maryland, 18 ; New York, 20 11. 2; Pennsyl- vania, 22 n. 2; American, 42, 211, 213, 224 n. 1. sq. Bills, 93, 94, ib. n. 1, ib. u. 2, 95, 156 ib. n. 2, 158 n. 2. Bills of Attainder, 96, e*. 11. 1, 211, ib. n. 2. Bishops, in Witenagemot, 67, 86-88 ; in Great Council, 6j ; in House of Lords, 68, 69; in Privy Coun- cil, 76. Blackstone, Sir William, 48, 154- 156, 164, 196 n. 1, 200, 201 ; cited, 48, 238. Britain, 60 n. 2, 61, 62, 121, 123, 124 n. 1. Britain, Great, 5, 9, 27, 29, 30, 31, ib. n. 4, 32, 36 n., 38, 42, 43, ib. n. 1, 52, 54, 101 n. 1, 123, 166, 171, 173, 175, 196 n. 1. Bryce, James, cited, 25, 41, 55 n. j., 146, 154, 158, 177, 202. Buckingham, George Villers, Duke of, 97 n. 1. Burgesses, 72, 73, 74 n. 3. Bute, Lord, 141. Butler, Pierce, 45 n. Cabinet, rise of the English, 92, 138, ib. n. 1 ; relation to the Privy Council, 77, 138 ; power, 138-140 ; relation to Parliament, 139-141 ; relation to the crown, 138-141, 171, 172, 176, 206; unknown in the American colonies, 151 ; re- lation of the American, to the President, 158, 166-168, 170-172, 176. Calvert, Charles, Lord Baltimore, 7- Cambridge, 219 n. 3. Campbell, Douglas, his assertion that Americans are not of Eng- lish race, 4 n. 1 ; answer to claims of his followers as to Dutch origin of American institutions, 19 n. 2 ; answer to claims of Dutch influ- ence in New York, 20 n. 2; in Pennsylvania, 23 n. 1 ; his claim of Dutch elements in the Ameri- can Confederation, 40, ib. 11. 1 ; his claim of Dutch influence in the Philadelphia Convention, 43, 149; in election of senators, 78 n. 1 ; his general claims in favour of Dutch as against English derivation of the American Con- stitution, 205 n. 1 ; his claim that religious liberty as provided in the American Constitution is of Dutch origin, 216 n. 2, 217 n. 2 ; on freedom of the press, 221 n. 2. Canada, 30, 204. Canterbury, 73, 124, 219 11. 3; Archbishop Baldwin, of 171 n. 1. Canute, King, 104, 122 n. 2. Cape Town, 8 n. Carolina, granted by Charles II., 23 ; its government, 23 ; Locke's plan regarding, 23, ib. n. 2, 24; divided into North and South Carolina, 24. Carolina, North, division from South Carolina, 24; State con- stitution, 37, 78, 187; bill of rights, 209, 218. Carolina, South, division from North Carolina, 24; State con- stitution, 37, 78, 80, 97, 152 n. i, 160 n. 3, 187 ; governor of, 150 n. 1. Cases, 197. Cenred, 86. Cerdic, 121 n. 2, ib. u. 4, 227 n. a. Chancellor, the, 182, ib. n. 1. INDEX. 267 Charles I., 13, 17, 19, 50, 92, 104, "4. 135. IS 1 . 2 °7. 22 3. 22 5- Charles II., 17, 23, 50, 92, 99, in, 135, 138, 151, 220, ib. n. 1, 222, 225. Charters, royal, 9, 27 ; commercial, 9 n. 1, 26; of Virginia, 10, 12; Massachusetts, 13, 14; New Hampshire, 15 ; Connecticut, 16, ib. n. 2, 17 ; Rhode Island, 17 ; Maryland patent, 17 ; New York, 19, 20; Pennsylvania, 22, ib. 11. 2; Georgia, 24. Chatham, Lord, 36 n. Chief Justice of the U. S. 98, 165. Choiseul, 30 n. 1. Church, the, 11 n. 2, 69, 73, 88, ib. n. 1, 123, 124, 127, 135, 216. Clarendon, Assize of, 235. Clarendon, Constitutions of, 235. Clarendon, Lord, 23, 73 n. 2, 97 n. 1. Coke, Sir Edward, 194, 231. Colonies, American, follow model of English institutions, 7, 24-26, 31 n. 1, 151 ; settled by English- men, 4,9 ; by other races, 4 n. 1 ; by Dutch, 5 n. 1, 14 n. 1, 18, 19 n. 1, 22 ; Scotch, 4 n. 1 ; Scotch-Irish, 4 n. 1 ; French, 4 n. i, 5 n. 1 ; Ger- mans, 4 n. 1, 5 n. 1 ; Welsh, 4 n. 1 ; Spaniards, S n. 1 ; Irish, 4 n. 1, 5 n. 1 ; Swedes, 4 n. x, 5 n. I ; separatedfrom England, 29,30,2*. n. 1, 35, ib. n. 1, 36, 37 ; attempted union of, 152 n. 1 ; no nobility in, 77 ; political usages of, 93. Columbia, District of, 188. Comitatus, the, 124, ib. n. 1. Common Law in Virginia, 13; Massachusetts, 15; New York, 20, ib. 11. 2 ; Georgia, 24 n. 2 ; in England, 199, 207 n. x, 210, 220 n. 3, 230, 231 ; in America, 37, ib. n. 1, 189, 190, 199, 207, ib. n. I, 208, 210, 229, ib. n, 1, 230. Commons, House of, model for American legislatures, 26, 43, 86 ; rise of, 69, 72, 83; relation of Simon De Montfort to, 71, 72, 136; membership of, 74, ib. n. 3, 132 n. 1 ; powers, 90-92, 97, 132, 137 ; act of attainder by, 96, 97 ; power of impeachment, 96-100; right to initiate money bills, 100, 101 n. 1, in ; right of audit of public accounts, in ; freedom of speech, 103, 104 ; freedom from arrest, 103, 104 ; ancient right to decide contested membership, 103, 106 ; membership contrasted with that of the House of Repre- sentatives, 206. Concilium, Magnum, 67, 180. See Great Council. Concilium Ordinarium, 76, 180 n. a, 183 n. 1. See Privy Council. Confederation, Articles of, 39; nature of, 39, 40; unsatisfactory, 39-41. S3, 84, 200 n. 3. Confirmatio Charlarum, 113. Congress, Continental, 35, 38 n. 1 ; of Confederation, 40, 84; Ameri- can, 60, 79, 93 ; powers, 80, 93, no 11. 2, 115, ib. n. 2, 173; procedure, 93, 95 n. 1 ; privileges, 96, 102 n. 1, 103; freedom of arrest for members, 104, 105 ; secrecy of proceedings, 108; right of appropriation, 112, 115 n. 2; of audit, 112; power of taxation, 115 ; relation to the President, 156-159, 167 n. 2, 171, 173. See Senate and House of Represen- tatives. Connecticut, charter, 17 ; early written constitution, 16 11. 2; State constitution, 17, 38, 205 n. 1 ; bill of rights, 17, 208, ib. n. ±. Conquest, Norman, 67, 127, 129, 178, 223, 234. 268 INDEX. Constitutional Amendments. See Amendments to the Constitu- tion. Constitutional Convention at Phila- delphia, 40-57, 77-84, 101 11. 1, 144, 147-160, 166, 177, 184, 186— 195, 202 n. 3, 213-217. Constitution, American, its sources, 4 ; a document, 4 11. 1 ; Dutch elements not in, 4 n. i. Constitution, English, 1, 26, 31, ib. n. 1, 38 n. 1, 43 1.. 1, 47-51, 53, 54 n. 1, 56 n. 2, 57, 72 n. 2, 73 n. 3, 83, 101 n. 1, 135, 136, 172, 184, 210, 239. Constitution of the Netherlands, 16 n. 2. Constitution of the States, 13, 37- 39. 49. 5°. 57 n - 2 . 77. 78, ib. n. 1, 207 n. 1, 238 ; of Virginia, n n. 4, 13 ; Connecticut, 16 n. 2, 17 ; Rhode Island, 17 ; Pennsylvania, 77 ; Vermont, 77 ; Maryland, 78; Massachusetts, 78; New York, 78; North Carolina, 78; South Carolina, 78. Constitution of the United States, 4, ib. 11. I, 41, 42, 50-57, 78 n. 1, 81 n. x, 93-110, 115, ib. n. 2, 117, 143, 147-176. 184-239. Constitutions of Clarendon, 235. Contested membership, 103, 106. Convocation, relation to taxation, 73 ; of Canterbury, 73 ; of York, 73- Cooley, Thomas M., cited, 171, 202, 224. Cornwall, Earl of, 71. Cortes, 194 n. 1. Council, colonial, 10-15, 23, 26. Council, Ordinary, 76. See Privy Council. Council, Privy, origin, 76; mem- bership, 76; relation to Parlia- ment, 76; powers, 76, 90; colo- nial relation, 27, 29 ; model of the U. S. Senate, 77-79 ; attempt in the Philadelphia Convention to create one, 78 ; relation to the king, 138 ; the Senate as a, 160- 167 ; judicial powers, 27, 29, 183- 191, 200. Court of King's Bench, 179, 180 n. 2, 182; Exchequer, 182; Com- mon Pleas, 182; Chancery, 182; Star Chamber, 183 n. 1, 220; of Claims, 188. See Supreme Court. Court, Supreme. See Supreme Court. Crane and Moses, cited, 12, 24. Criminal trial, 202, 228-233. Cromwell, Oliver, 8 n., 50. Cumberland, 8 n. Cyning, 119, ib. n. 2, 160. See King. Cynric, 123 n. i, ib. u. 4. Dakota, 7 n. Danby, Thomas Osborne, Earl of, 99- David of Wales, 97. Debate, secrecy of, 107, 108. Declaration of Independence, 37, 39, 54 n. 2, 115, 225, 237. Declaration of Rights, 222. Delaware, settlement, 22 ; united with Pennsylvania, 22; legisla- ture of, 23; State constitution, 37, 78 n. 1, 97 ; governor of, 150 n. 1, 187. Deputy governor, office of, 81. Dering, Sir Edward, 107 n. a. De Toqueville, 189 n. 1. Dickinson, John, 79 u. 1, 187 n. 2. Dorset, 8 n. Dutch race in America, 4 n. 1 ; in- fluence on American institutions, 51,1,411, 1, 19 n. 2 ; in New York, 18, 19 n. 1, ib. n. 2, 20 n. 2 ; INDEX. 269 in Pennsylvania, 23 n. 1 ; in New Jersey, 18. Dutch West India Co., 20 n. 2. Eadgar, 66 n. i, 87. Earldorman, 67, 86-88, 121, ib. n. 2, 124, 126 n. Earls, 67, 69. East Anglia, 63 n. 1. Edmund, 87. Edward the Confessor, 88, 89 n. 1, 104 n. 4, 122 n. •*. Edward I., 72, ib. n. 2, 90, 105, 113, 127 n. 1, 131, 179, 223. Edward II., 91, 105, no n. 2, 127 n. 1, 179- Edward III., 91, 96, no n. 1, 114 n., 202, 203, 236. Edward IV., 127 n. 1, 179. Edward VI., 135, 231 n. 1. Egbert, 67, 88. Eleanor, Queen, 71. Election, 69, 70, ib. n. 1, 71, 72, 78 n. 1, 79 n. 1, 88, 103, 106, 109, 119, ii. n. 1, 120, 127, ib. n. 1, 129, 152 n. 1, 194. Electors, American, 152, u. 1 ; Ger- man imperial, 152 n. 1. Eliot, Sir John, 104. Elizabeth, Queen, 9, 91, 106, 135. Emancipation Proclamation of President Lincoln, 164 n. ±. Empire, British, 5, 6, 9. Empire, Holy Roman, 152 n. 1. England, 5-7, 10-15, 18-20, 26, 28, 30 n. 2, 31, 32, 36 n., 42, 43, 44, 47. S3. 55 »• 1. 5° n - 2 . 6° n - 2 . 62, 70 n. 2, 72-77, 81 n. 1, 83, 86, 92, 96, 99, 104, 107, no n. 2, 115 n. 2, 117, 122 n. 1, ii. n. 2, 123, 142, 144 n. 3, 147, ii. n. 2, 149-151, 157 n. 2, 158, 176, 180, 184 n. 1, 185-190, 192, 194 n. 1, 196 n. 1, 198, 201, 202, 205 n. 1, 207, 216, ii. n. 2, 222, 223, 227, 229 n. l, 233, ii. 11. -z, 234, 238. England, New. See New England. Equity, 198, ii. n. 1, 199. Ercenwold, 87. Essex, 63 n. 1. Ethelbert, King, 87, 104. Ethelred II., King, 235. Executive, 117, 118, 120, 144, 149 n. 1, 171 ; colonial, 12, 13, 14, ib. n. 1, 15, 17, 20, 149 n. 1 ; English, 117-120, 144, 149 n. i, 171. See King, Governor, President. . Ex-post facto laws, 211, ib. a. 2. Faulkland Islands, 8 n. Federalist, The, 174; cited, 47, 52, 185, 186. Fitz Walter, 136. Folkmoot, origin, 60-63; continu- ance, 65, 181 ; membership, 70. Fort Garry, 8 n. Fox, Charles James, cited, 143 n. 2. France, 81 n. 1, 83, 135 11. 1, 158, 186, 233 n. 2, 234. Franklin, Benjamin, 36 n., 54 n. 2, 78 11. 1, 154 11. 1, 174 n. 1, 221 n. 2. Freedom from arrest for members of Parliament and of Congress, 103-106. Freedom of the press, 219, 221. Freedom of speech, 103, 104. Freeman, Edward A., cited, 68, 83. Frothingham, Richard, cited, 30. Gallatin, Albert, 167 n. n. Gascony, 71. Gaul, 60 n. •*. George I., 97 u. 1, 138, 142 n. 1, 146. George II., 24. George III., 32, 92, 97 n. 1, 115, 117, 140-143, 145-147, 151, 156 n. 270 INDEX. i, 157, 170, 172, 175, 176, 194 n. 1, 195, 215, 221, 225, 226. Georgia, charter, 24; government, 24; State constitution, 37, 152 n. 1, 187; bill of rights, 208 n. 1, 218. Germany, 36 u,, 60 n. 2, 61, 134 n. 1, 216, 233 n. n. Gibson, Bishop, 73 n. 2. Gloucestershire, 64 n. 1. Governor, royal relations of the, 26-29, 48, J *7 1 colonial, 26, 149 n. i # 150-152 ; State, 151 n. 1, 152 n. 1 ; relation to council, 97, 152 n. 1 ; powers, 152, 158 ; title, 150 n. 1; of Virginia, 12, 13; Massa- chusetts, 13, 14, ib. n. 1 ; New York, 20; Pennsylvania, 23; Carolina, 24. Grant, U. S., President, 174 n. 1. Great Britain, 5, 9, 27-32, 36 n., 42, 43, ib. n. 1, 52, 54, 101 n. 1, 123, 166, 171, 173, 175, 196 n. 1. Green, John Richard, cited, 26, 215. Grotius, i, 45 n. Habeas Corpus, 161 n. 1, 211. Hague, the, 194 n, ±. Hallam, Henry, cited, 71. Hamilton, Alexander, 46 n., 41 n. 1, S3. 54. 157 n- 1. >74. 176, 194 "• '■■ Hampshire, 123. Hampshire, New, charter, 15 ; early government, 15; State constitu- tion, 38, 78, 80, 97, 101, 152 n. 1 ; governor, 150 n. 1 ; case involv- ing New York referred to Eng- lish Privy Council, 200. Hanover, House of, 50, 92, 127 n. ±, 138, 139, ib. n. 1, 142 n. 1, 145- 147, 151, 156 n. 3, 214, 237. Hanover, Sophia of, 127 n. 1. Hardwicke, Lord, 200. Hare, J. I. C, cited, 51. Hartford, 16. Hastings, Warren, 97. Hayes, Rutherford B., President, 158 n. 1, 167 n. -a. Hedde, 87. Hengest, 121 n. 3. Henry I., 112, 129, 130,21$. n. ±, 178, ib. n. 1, 179, ib. n. 1. Henry II., 67, 89, 130, 180 n. a, 181 n. 1. Henry III., 70, 71, 76, 90, 130, 178, ib. n. 1, 179, 182, ib. n., 223, 234. Henry IV., 97, 100, 103, in, 114 n. 1, 127 n. 1. Henry V., 94. Henry VII., 127 n. ±, 134 n. 1. Henry VIII., 91, 103, 135. Heretoga, title of, 121, ib. n. 3. Hobbes, Thomas, 1, ib. 11. 1. Holland, 19, ib. n. 2, 20 n. 2, 40, 41, 43 n. 1, 78 n. 1, 149, 194 n. 1, 216 n. 2, 220 n. x, 221 n. 2. Homer, 37. Horsa, 121 n. 3. Houses, two. See Two Houses. Hundred, the, 62, 70. Hyde, Edward, Earl of Clarendon, 97 n. 1. Independence, Declaration of, 37, 39. 54 n- A "5. 22 5. 2 37- Ini, 86. Instinct, theory of, 2 n. 1. Ireland, 123. Italy, 60 n. 2. Jackson, Andrew, President, 147 n. 1. James I., 9, 10, 92, 99 n. 3, 106, 127 n. 1, 135, 151, 179, 208 n. 1, 223, 231. James II., 14, 20, 50, 92, 135, 137, 181, 217, 224, 225. Jamestown, Va., n, ib. 11. 1, n n. a. Jay, John, 53, 54. INDEX. 271 Jefferson, Thomas, President, 147 n. 2, 158, 167 n. 2. John, King, 70, 71, 89, 113, 122 n. i, ib. n. 2, 130, ib. n. i, 207. Johnson, Professor, cited, 38, 56. Judiciary, American colonial, 12, 13, 15, 22, 29, 184, 187, 191 ; State, 184 n. 1, 187, ib. n. 2, 188, 189, ib. a. 1, 190, 191, 192 n. 1 ; national, 184, ib. n. 1, 185, 187, 188, 189, ib. n. 1, 190; English, 9, 29, 76, 87-90, 125, 126, 132, 164, 178-184, 190, 200. Judges, duration of appointment, 193-196. Jurisprudence, 12-15, 2 °i 22 n - 2 i 24 n. 2, 29, 37, ib. n. 1, 43 n. 1, 190, 192, 197, 198, ib. n. 1, 200, 201, ib. n. 1, 228-233. Justice Chief, of the U. S. Supreme Court, 98, 165. Justices of the Supreme Court of the U. S., 165, 193. Jury, trial by, 9, 13, 17, 202, 208, 228, 229, 233-238. Kansas, 7 n. Kent, Chancellor, cited, 37, 104, 207. Kent, County of, 63 n. 1, 86. King, relation to the government of the colonies, 10-13, I 5> 22 ' 2 4> 26, 27, ib. u. 2, 39, 151 ; a model for the American executive office, 43, 148-158, 173, 175-177; "Na- tion to the Witenagemot, 63-67, 88, ib. n. 1, 89; relation to the Great Council, 67 ; relation to the membership of Parliament, 71-73 ; the kingship elective, 69, 90, 118-120, 127, ib. n. 1, 129; relation to the Privy Council, 76 ; to the judiciary, 86, 87, 126, 164, ib. n. 1, 178, 179; deposition of the, 88, 91, 98, 127, 137 ; powers of the, 91, 92, 126, 129, 132, 133, 137, 140, ib. n. 2, 142-145, 155, 156, 160, 164 11. 1 ; royal phi- losophy, 92, 127 n. 1, 133, 135, J 37i J S9 > fountain of honour, 127, 160, 164, ib. n. 1 ; fountain of justice, 126, 164, ib. n. 1, 178, 180, 194; pardoning power, 99, 164; origin of the kingship, 117, 118, ib. n. 1, ib. n. 2, 120, ib. n. I, 127; prerogative of the, 117, 136, 154, 156, 160, 164, ib. n. 1 ; title of the, 119, ib. u. 2, 122 u. 1, ib. 11. a, 126, ib. n. 1, 127; devel- opment of the kingship, 123, 124 n. 1, 129-136; relation to the judiciary, 86, 87, 126, 164, ib. n. 1, 178, 179, ii. 1 ; veto power, 156-158; proclamations, 164 n. 1 ; hereditary right of, 119, 120, 127 11. 1, 133; tribal, 118-122; commander-in-chief, 127, 160 ; relation to militia, 187; limited nature of the office, 127, 131, 137-139; coronation of, 127, ib. it. 1; territorial jurisdiction of, 127 n. 1, 129, 133 ; relation to Parliament, 136-142, 144, 146, 156; relation to the cabinet, 138-147 ; American idea of the King, 147, ib. n. 2, 160. Knights, 67, 71-74. Knights of the Shire. See Knights. Lancaster, 91, 127 n. 1, 132, 135. Lancaster, Henry of. See Henry IV. Lancaster, House of, 127 n. ±, 130, I3 2 « 135- Laud, Archbishop, 97. Law, common, 13, 15, 20, ib. n. 2, 24 n. 2, 37, ib. n. 1, 189, 190, 199, 207, ib. n. 1, 208, 210, 220 n. 3, 229, ib. n. 1, 230, 231. Law, English, 5, 20, ib. n. 2. 272 INDEX. Law of the land, 4 n. 1. Legislature, first one in America, 9 n. 1, ii, ib. n. 2, n. 4; popular movement of colonists to com- plete legislative organism, 9 n. 1, 10, 11, ib. n. 2, n. 4, 12-15, 20 i 2 3i 25 ; American limited, 48, 80, no n. 2; colonial upper house, 10- I 3» J 5> 2 3. 2 6; colonial lower house, n-15, 20, ib. n., 23, 26, 78 n. 1, 79, *'£. n. 1. Leicestershire, 8 n. L' Esprit des Lois, 46, 185, 186. Lewes, 71. Lexington, 36. Liberty, religious. See Religious Liberty. Licensing Act, 220, ib. u. 3. Lincoln, Abraham, President, 8 n., 161 n. 1, 164, n. 1, 167 n. 2, 171, 172. Locke, John, his philosophy, 1 ; his plan of government fbr Carolina, 23, ib. n. 2. Lolme De, John Louis, 196 n. 1. London, 7 n., 8 n., 27, 71, 107 n. z, 204, 219, 220 n. 3. London, Bishop of, 219. Lords, House of, a model for gov- ernment in America, 26, 43 ; de- veloped from the Witenagemot, 68, 69 ; meetings of, 72 ; a model for the United States Senate, 77, 78 n. 1, 79, ib. n. 1 ; presiding officer of, 80 ; powers of, 90, 91 ; overthrow of, 92; judicial func- tions of, 96, 97, 93 n. 3, 180, 183, ib. 11. 2; relation to money bills, 100, 101 n. 1 ; freedom of speech in, 103 ; membership, 132, ib. n. 1 ; contrasted with the United States Senate, 206. Louis XIV., 138 n. 1. Louisiana, purchase of, 167 n. 2. Lovat, Lord, 97 n. 1. Lowell, James Russell, cited, 57. Lutherans, 216. Lyons, Lord, 161 n. a, Macaulay, Lord, cited, 136. Madison, James, President, 45 n., 49 n. 1, 52, 54, 167 n. z, 186, 187 n. 2. Magna Charta, 15, 18, 20 n. 2, 54 n. 2, 56, 90, 113, 130, ib. n. ±, 131, ib. n. 1, 181 n. 1, 207, 209, 221 n. i, 230, ib. 11. 1. Mahrattas, King of, 144 n. 3. Maine, province of, 208 n. 1. Maine, Sir Henry, cited, 51, 52, 82, 173. i g S. IQ °- Mansfield, Lord, 215, ib. n. 3. Mary I., 106, 137, 223. Mary II., 20, 92, 114, 136, 137, 151, 157 n. 2, 194, 221. Maryland, patent, 17, 18 n. 1 ; early government, 18, ib. n. 2; State constitution, 37, 78, 152 n. 1, 187, 232 n. 2; bill of rights, 115 n. 1, 208 n. 1, 209 ; religious liberty in, 216, ib. n. 2. Mason, George, 46 n. 1. Massachusetts, charters, 13, 14 ib. n. 1 ; early government, 14 ; ad- dress to the Long Parliament, 15 ; its government the model for that of Connecticut, 16 n. 1, 17 ; its copying after English institu- tions, 14, 15; State constitution, 37, 78, 80, 97, 101 ; bill of rights, 115 n. 1, 209, ib. n. 1, 218. Matilda, Queen, 178 n. 1. Maud, Queen, 178 n. 1. May, Sir Erskine, cited, 26, 146. Mayflower, the, compact signed on, 16 n. is. Melville, 97. Membership of Parliament, con- tested, 103, 136. Mercia, 63 n. 1. INDEX. 273 Mexico, 161 n. i. Militia, 127, 223, ib. 11. 1, 224, ib. n. 1. Miller, Mr. Justice, cited, 42. Milton, John, 220, ib. n. 1. Mompesson, Sir Giles, 97 n. 1. Monroe, James, President, 149 n. 2, 167 n. 2. Montfort, Simon de, 8 n., 71, 72, 136. Montesquieu, Baron de, 46, 47, 48, 49 n. 1, 185, 186, 196 n. 1, 238. Moravians, 216. Morris, Gouverneur, 43 n. 1. Morris, Robert, 54 n. 1. Natal, 8 n. Netherlands, the, 16 n. 2, 19, 193 n. New Amsterdam, 19. Newburg, 147 n. 2. New England, 13, 20, 22 n. 1, 216, ib. n. 2, 221 n. 2. New Hampshire, charter, 15 ; early government, 15 ; State constitu- tion, 38, 78, 80, 97, 101, 152 n. 1 ; governor, 150 n. I ; case involv- ing New York referred to Privy Council, 200. New Haven, colony of, 16. New Jersey, Dutch settlement, 18 ; granted by the Duke of York, 21 ; government, 21, 22; State con- stitution, 37, 232 n. 2. New York, settlement by the Dutch, 18, 19 n. 2; by the Eng- lish, 18; charters, 19; theory of Dutch derivation, 19 n. 2, 20 n, 2; government under the Duke of York, 19, 20 ; colonial govern- ment, 20, ib. n. 2; State consti- tution, 78, ib. 11. 1, 97, 152 n. 1, 157 n. 1, 160 n. 3, 217 n. 2; bill of rights, 208, 210, 216 n. 2, 221 n. 2. New Zealand, 8 n. Nichol, Governor, 217. Nicola, Colonel, 147 n. 2. Nobility, 23, 29, 75 u., 77 n. 1, 83, 124, ib. n. 1, 125, 130, ib. n. 1, 131. Norfolk, 179 n. 1.' Norman Conquest, 67, 127, 129, 178, 223, 234. Normandy, 234. Northamptonshire, 54 n. *. North Briton, The, 226. North Carolina, division from South Carolina, 24; State con- stitution, 37, 78, 187; bill of rights, 209, 218. North, Lord, 143, 144, 156 u. 1, 170, 172. Northumbria, 86. Orange, William of. See William III. Ordinary Council. See Privy Council. Osborne, Thomas, Earl of Danby, 99. Oxford, 54 n. 2, 71, 219 n. 3. Palgrave, Sir Francis, cited, 235. Pardoning powers of governors, 152; of President, 100, 152 n. I, 166, ib. n. 1 ; of King, 165. Parliament, colonial relations of, 27, ib. n. 2, 28, 32, 33, 35 n. 1 ; a model for colonial legislatures, 52, 82, 84 n. 1; origin, 60, 69; representation in, 66 n. 1, 68, 69, 70 n. 1, 71 ; membership, 68-74 1 two houses, 9, 11, 72-74, 83, 90; three houses, 73, 83; compared with Congress, 80, 173; presid- ing officers, 80; powers, 90-92, 98, no n. 2, 114, 115 ; privileges, 92, 99-101, 103, 104, 106, 107, 180; relation to taxation, 112-115 ; re " lation to the sovereign, 129, 131, 274 INDEX. 135-142, 144, 146, 156, 159; re- lation to the cabinet, 138-141. Penn, William, 22, 23 n. i, 78 n. 1, 218. Pennsylvania, settled by Dutch and Swedes, 22 ; granted to Penn, 22 ; relation to Delaware, 22 ; patent, 22, id. n. 1; government, 23; Dutch influence, 23 n. 1 ; State constitution, 37, 77, 78 n. 1, 80, 97, 152 n. i, 221 n. 2, 232 n. 2; governor, 150 n. 1 ; bill of rights, 209. Petition of Rights, 114, 207, 223, 225, id. n. 3. Petition, right of, 221, 222. Philadelphia, 41-43, 49 n. 1, 50, 53, 77-79, 84, id. n. 1, 101 n. 1, 144, 147, 154, 166, 186, 187, id. n. 1, igo, 193, 195, 211, 214 n. i, 217 11. 2. Pinckney, Charles Cotesworth, 46 n., 54 n. ii, 167 n. ^, 217 n. ^. Pitt, William, 144, 147 n. ±. Place Bill, 137 n. 1. Plantagenets, the, 70, 89, 92, 93, 122 n. 2, 130, 132, 133. Plymouth, colony of, 14 n. 1 ; bill of rights, 115 n. 1, 208, id. n. 2, 209. Pratt, Lord Chief Justice, 228 n. 1, Presbyterians, 216, id. n. 2. President, colonial, 15, 154 n. ±. President of the United States, his office derived from the governor- ship, 149, id. n. j., 150, id. n. 1, 152, id. n. 1 ; from the kingship, 42, 117, 148-151, 153, 155, 158- 161, 164-166, 173-177; his title, 150 n. 1; impeachment, 98, 100; election, 152 11. 1, 174 n. 1 ; powers, 150, 151, 155, 157-167. 174, 175 ; pardoning power, 100, 152, 166, id. 11. 1 ; his veto, 156, 158, 174; message, 158; relation to Congress, 156-159 ; relation to foreign affairs, 16, id. n. 1, 170; is commander-in-chief of the army and navy, 161, 164 n, 1, 174; his war powers, 161 u. 1, 163; power of appointment, 160, id. n. 3, 165, 172, 174, 193 ; proc- lamations, 164 n. 1 ; execution of the laws, 165, id. n. 1, 174, 175; his relation to the cabinet, 158, 166, 167 n. 2, 168, 170-172, 176. President, Vice, 81. Press, freedom of, 219-221. Proctor, Richard A., cited, 6 n. Proctors, 73. Protestants, 215, 216, id. n. 2, 223. Puffendorf, 1. Puget Sound, 8 n. Puritanism, 135. Puritans, 216. Quakers, 216. Quartering of troops, 224, 225, id. n. 3. Race influence, 3; Dutch race in America, 4 n. 1 ; English race in America, 4 n. 1, 5 n. 1 ; Teutonic race, 4, id. n. 1. Randolph, Edmund, 46 n. Reformation, the, 73, 135, 219. Religious liberty, 211, 214-219. Representation in legislation, 9; in Virginia, 13, 33 ; Teutonic, 66 n. 1; in the Norman Great Coun- cil, 68 ; origin of in Parliament, 69-72, 113 n. 1, 115. Representatives, House of, 42,43; origin of, 80; presiding officer, 81, id. n. 1; privileges, 96; rela- tion to money bills, 46 n., 101, id. n. 1, 102, id. n. 1 ; contrasted with the House of Commons, 201, n. 1. Revolution, American, 12, 24, 29, 31 n. 4, 32, 35-37, 43 n. t, 53, 115, INDEX. 275 143, it. 11. 2, 158, 172, 191 n. 1, 200, 207 n. 1, 222, 226; English, of 1688, 29, 50, 92, 99, 136-138, 207, 232; French, 41, 84 n. 1. Rhode Island, early government, 17; charter, 17; State constitu- tion, 17, 38, 152 n. 1, 191, 205 n. 1 ; bill of rights, 208 n. 1, 209. Richard I., 89, 135. Richard II., 91, no n. 1, 114 11. a, 127 n. 1, 131, 134. Rights, Bill of, in Virginia, 13 ; Mas- sachusetts, 15; Connecticut, 17; Maryland, 18 ; New York, 20 n. 2 ; Pennsylvania, 22 n. 2 ; of the United States, 42, 211, 213, 224 u. 1 ; England, 104, 114, 137, 207, 222, 225, 232, 233. Right of petition, 221, 222. Right, Petition of, 14, 207, 223, 225, ib. n. 3. Right to bear arms, 223, ib. n. 1, ib. n. 4, 224, ib. n. 1. Rochefoucauld, Due de la, 174 n. 1. Rockingham, Lord, 144. Roman, 60 n. 2, 124, 231, 233 n. 2, 234, ib. n. 1. Roman Catholics, 215, 216, ib. u. ■a, 218. Rome, 238. Roses, Wars of the, 131. Rousseau, Jean Jacques, 1, it. a. 1. Rufus, William. See William II. Rutledge, J., 10 n. 1, 54 n. is. St. Albans, 70, 71. St. Andrews, 54 n. 2. St. Edmund, Abbot of, 171 n. 1. Scroggs, Chief Justice, 220 n. 3. Scotland, 54 n. 2. Secrecy of debates, 107, 108. Secession, War of, 161 n. ±. Secretary, of the Navy, 170 n. 2 ; of State, 170, id. u. 2 ; of the Treas- ury, 167 n. 2 ; of War, 172 n. U. Senate, the, origin, 77-79 ; of States, 78, ib. n. 1; membership, 78 n. i, 79 n. 1 ; its function as executive council, 79; as Privy Council, 160, ib. n. 2, ib. n. 3, 162, 166, 167 ; contrasted with the House of Lords, 206; presiding officer, 81 ; privileges, 96, 97 ; judicial powers, 96, 97; relation to money bills, 101, 102, ib. 11. 1 ; powers, no n. 2, 156. Settlement, Act of, 99, 109, 127 n. i, 194, 196. Seward, Secretary, 161 n. 1. Shaftesbury, Lord, 23 n. 2. Shelburne, Lord, 144, ib. n. 3. Sheldon, Archbishop, 71, 73. Shire, Knights of the. See Knights. Shiremoot, the, origin, 60-63 ; con_ tinuation of, 6$, 181 n. 1 ; mem- bership, 70. Shrewsbury, 97. Social contract theory, 1, 2 n. 1. Social growth theory, 1, 2 n. 1. Sophia of Hanover, 127 n. 1. Spain, 44 n., 60 n. 2, 82, 134 n. 1. Sparta, 238. Speech, freedom of, 103, 104. Spinoza, 1. Stafford, Thomas Wentworth, Earl of, 97 n. i. State, the, colonial source of gov- ernment, 13 ; constitutions, 13, 17, 25, 49, no n. 2; origin of the legislature, 60; -executive council, 77; executive, 150 n. 1, 152 n. 1 ; controversies between States, 197, 200, ib. n. 1 ; State system, 204. States in the Confederation, 39, 40. States General of France, 82. States General of the Netherlands, 41. Statholder, A., 194 n. 1. Stephen, King, 122 n. 2. 276 INDEX. Story, Mr. Justice, cited, 10, n, 152. IQ 9- Stuart, House of, 132, 139. Stubbs, Bishop, cited, 134. Suffolk, 179 n. 1. Sunderland, Robert, Earl of, 138, ib. n. 1. Supreme Court, the, attitude on war powers of the President, 161 n. 1 ; its justices appointed by the President, 165; decisions, 43 n. 1, 170 n. 3, 211 n. 2; powers, 185, 189, ib. 11. 2, 192 n. 1, 192 n. 2, 196 n., 197, 200, 206 ; guardian of the constitution, 190- 192; procedure, 190-192, 197, 198, ib. n. 1. South Africa, 204. Sussex, 63 n. 1. Sweden, 82, 83. Switzerland, 43, ib. 11. z. Tacitus, cited, 59. Taney, Chief Justice, 161 n. 1. Taxation, 9, 13, 32-34, 71, 73, ib. n. 2, 88, 90, 101, 102, ib. n. i, 104 n. 1, 105, no n. 2, 112-114, 129, r37. Taylor, Hannis, cited, 67, 190, and nn. Tenants in chief, 68, 130 n. 1. Test Act, 215 n. 4, 219, ib. n. 2. Teutonic, institutions, 60, ib. u. 2, 62, 69, 70 n. i, 72, 86, 96, 117-119, 121 ; race, 44, 61 n., 130, 238 ; freedom, 61 ; legislation, 66 n. 1, 67, 87, 89 n. 2. Thegns, 67, 126 n. Third Estate, 72, 73 n., 82. Toleration, Act of, 214. Tories, 31 n. 4, 147 n. 1. Township system, 4 n. 1, 25 n. 1. Treason, law of, 202, 203, ib. 11. 1. Tudor, House of, 132, 134 n. 1, I3S- Turgot, 30 n. 1. Two Houses, 9, 12, 14, 17, 18, ib. 11. 2, 42, 72-74, 77, 83, 84, ib. n. 1, 90. Union of Utrecht, 16 n. 2, 205 n. 1. United States, the, 10, 27, 57, 84, 85, 109, no, 117, 143, 144, 152, 156, 159, 161, ib. n. i, 165, ib. n. 1, 170-173, 175, 185, 188, 192, ib. n. 2, 193, 196-203, 214, 218, 219, 229, 239. Venice, 43 n. 1. Vermont, State constitution, 77, 80, 97, 232 n. 2. Versailles, Peace of, 144. Veto power, 12, 22, 27, 93 n. 1, 95, IS6-rs8, 174, 175. Vice-President, 81. Victoria, Queen, 140 n. 1, 175. Villars, George, Duke of Bucking- ham, 97 n. 1. Virginia, settlement, 10; charters, 10; first legislature, 10, 11, ib. n. 2, ib. n. 4; Governor Yeardley, 11; early government, 11; com- pared with Massachusetts, 15; State constitution, 13, 37, 78 n. 1, 97, 187; bill of rights, 115 n. 1, 208 n. 1, 209, 217 n. 2. Warrants, 226-228. Washington, city of, 27, 192 n. 2, 204. Washington, George, President, 8 n., 36 n., 147 n. 1, 158, 170, 174 n. 1. Webster, Daniel, cited, 37. Wentworth, Thomas, Earl of Straf- ford, 97 n. 1. Wessex, 63 n. 1. West Indies, 143 n. a. Westminster, 71. West Saxons, 86. Wethersfield, 16. INDEX. 277 Whigs, 31 11. 4, 138 n. i, 147 n. 1. Whitehall, 136. Whitraed, 86. Wilkes, John, 226, 227 n. 1. Wilfred, 87. William I., the Conqueror, 89, ii. u. 1, 122 n. *, 127 n. i, 129, 133, 178. William II., Rufus, 129, 178. William III., of Orange, 20, 92, 97, 99, in, 114, 136-138, 145, 146, 151, 194, ii. n. 1, 214, 221. Williams, Roger, 216 n. 2. Wilson, James, 45 n. 2, 54 11. 2, 149 n. I, 157 n. 1, 187 n. 2. Windsor, Conn., 16; England, 17. Witenagemot, origin, 60, 62, 64; membership, 64-67, 86, 87 ; pro- cedure, 66 n. 1, 87, 88 n. 1 ; title, 67 ; merged in the Great Coun- cil, 67, 180; in the House of Lords, 68; origin of the Privy Council, 76; of the Senate, 77, 79 ; powers, 88, 89, ii. u. i, 96, 98, 112, 126, 127, 180, ii. n. 1. Woden, 124. Yeardley, Governor, 11. York, 73, 91, 127 n. i, 132, 134, 135. York, Duke of, 19-22, 217, ii. n. 2. York, House of, 129 n. 1, 132, 134, 135- Yorkshire, 8 n. The American Commonwealth. By the Right Hon. JAMES BRYCE, D.C.L., Author of "The Holy Roman Empire "/ M.P.for Aberdeen. In Two Volumes, Large i2mo. Third Edition, Revised Throughout. Vol. I. $1.75. 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